Milton Shadur: The Consummate Judge, By Hon. Robert Gettleman

Mandatory Initial Discovery: Just, Speedy, and Inexpensive or Nasty, Brutish, and Short?, By Daniel R. Fine

Operation Greylord: Corruption in the Cook County Courts, By Terrence Hake

Who, Me, Unreasonable? Establishing “Reasonableness” of Defense Counsel Fees in Insurance Coverage Litigation in the 7th Circuit, By Jesse Bair

Supreme Court Limits Use of Settlements to Skip Priority Creditors in Bankruptcy, By David Christian

When Unpopular Opinions Meet Politics: Three Milwaukee Federal Judges Who Faced ImpeachmentInvestigations, By Barbara Fritschel

Book Review, By Joseph Ferguson, PUBLIC CORRUPTION AND THE LAW: Cases and Materials,by David H. Hoffman and Juliet S. Sorensen

TRIBUTES:

Judge John W. Darrah, By Jim Dvorak

Judge Larry J. McKinney, By Hon. Tim A. Baker

Judge Denise K. LaRue, By Hon. Tanya Walton Pratt

Fea t u re d I n T h i s I s s u e

November 2017

TheCircuit

Rider

TheCircuit

RiderT H E J O U R N A L O F T H E S E V E N T H

C I R C U I T B A R A S S O C I A T I O N

T H E J O U R N A L O F T H E S E V E N T H

C I R C U I T B A R A S S O C I A T I O N

T h e T i m e s T h e y

Ar e aChang in ’

The Circuit Rider

Letter from the President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Judge Richard A. Posner Announcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Milton Shadur: The Consummate Judge, By Hon. Robert Gettleman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-8

Mandatory Initial Discovery: Just, Speedy, and Inexpensive or Nasty, Brutish, and Short?, By Daniel R. Fine . . . . . . . . . . . . 9-12

Operation Greylord: Corruption in the Cook County Courts, By Terrence Hake . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-17

Who, Me, Unreasonable? Establishing “Reasonableness” of Defense Counsel Fees in Insurance Coverage Litigation in the 7th Circuit, By Jesse Bair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-22

Supreme Court Limits Use of Settlements to Skip Priority Creditors in Bankruptcy, By David Christian . . . . . . . . . . . . . . . . 23-25

When Unpopular Opinions Meet Politics: Three Milwaukee Federal Judges Who Faced Impeachment Investigations, By Barbara Fritschel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-30

Book Review, By Joseph Ferguson, PUBLIC CORRUPTION AND THE LAW: Cases and Materials,by David H. Hoffman and Juliet S. Sorensen, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31-39

A Tribute to Judge John W. Darrah, By Jim Dvorak . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41-42

A Tribute to Judge Larry J. McKinney, By Hon. Tim A. Baker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-45

A Tribute to Judge Denise K. LaRue, By Hon. Tanya Walton Pratt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46-48

Around the Circuit, By Collins T. Fitzpatrick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Writers Wanted! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Upcoming Board of Governors’ Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Get Involved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Send Us Your E-Mail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48

Seventh Circuit Bar Association Officers for 2017-2018 / Board of Governors / Editorial Board. . . . . . . . . . . . . . . . . . . . . .50

I n T h i s I s s u e

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Letter from the P r e s i d e n tPresident Elizabeth HerringtonMorgan, Lewis & Bockuis LLP

Welcome to another edition of TheCircuit Rider. Thanks to magistrateJudge Jeffrey Cole and the entire editorialBoard and the contributing authors fortheir efforts towards another fantasticpublication. Please take time to read eachof the articles; you will be glad you did. The Circuit Rider isalways first-rate and this issue is no exception.

Those of you who joined us in indianapolis in may experiencedfirst-hand the excellent programs planned by Past PresidentBrian Welch and his team. We enjoyed appearances by indianapolismayor Joseph hogsett and Circuit Justice elena Kagan, bothof whom were engaging and offered thought-provokingcomments. We also heard from the amazing eva mozes Kor,who is a survivor of the holocaust. Along with her twin sistermiriam, she was subjected to human experimentation underJosef mengele at Auschwitz. Kor founded the organizationCANDLes (an acronym for “Children of Auschwitz NaziDeadly Lab experiments survivors”) and her perspectiveswere simply fascinating. Among numerous interesting topics,we heard discussions about the future of the United statessupreme Court, and legal issues surrounding data breaches andcollege sports. As always, we enjoyed opportunities for benchand bar to get to know each other, and appreciate each other’sperspectives on the judicial system, a little better.

This year, we are looking to set the 7th Circuit Bar Associationon a clear path for continued success and to become an everbigger asset to our legal community. in the last two months,we have embarked on a strategic planning process to raise theprofile and membership of this important organization. Workingwith a consultant, we have already surveyed and interviewedboth members and non-members, in order to help solidify ourgoals and develop a clear strategic plan for our future. it is avery exciting time for the Association.

We already have a strong membership, but we would like to seeit grow even more. in particular, we are looking for youngerlawyers to join us and understand the real value membership inthe Association brings. i started in the Association as a younglawyer and it has been a tremendous experience. each year, ibenefit not only from the programming the Association offers,but also from the opportunity to meet other lawyers and judges

who work in the federal courts – not just in Chicago, but acrossillinois, indiana and Wisconsin. The Association offers lawyersthese opportunities and we need to better broadcast all the terrificaspects membership includes.

most lawyers know that the Association puts on an Annual meetingwith the 7th Circuit Conference. The 2018 meeting will be heldApril 29 through may 1 at the Radisson Blu Aqua hotel inChicago. Our Annual meeting is traditionally filled with greatprogramming and this year will again be fantastic. But, theAnnual meeting is just one part of what the Association does.The Association also offers other excellent programmingthroughout the year. For example, on October 13, the 7th CircuitBar Foundation sponsored a symposium: What To Do AboutGun Violence. The symposium planning was led by ThomasCampbell and Doug Carlson. it was a true success. The day-long event brought together gun violence thought leaders fromaround the country, each of whom offered information andperspectives on gun violence plaguing our country. Our Diversity& inclusion Committee is putting on a 3-part series programon voting rights and gerrymandering issues. The first two partsof the series were held on september 25 and October 25. Bothoffered insightful looks at voting issues and were very well-received. Our young Lawyers Committee will host socialevents and CLe programming throughout this year as well.

Two notable retirements occurred in the seventh Circuit justwithin the last month. Judge Richard Posner retired from theseventh Circuit after nearly 36 years on the bench and Judgemilton shadur will retire from the Northern District of illinoisafter 37 years. i know that you will enjoy Judge Robert Gettleman’sarticle about Judge shadur’s impressive career. The seventhCircuit also experienced significant other losses this year. Thisissue includes wonderful tributes to Judge Larry mcKenney,Judge John Darrah, and magistrate Judge Denise LaRue, eachof whom passed away this year and will be missed.

This Circuit Rider contains insightful articles about the newmandatory initial Discovery Pilot Program, the “reasonableness”of defense counsel fees in insurance coverage litigation pendingin the 7th Circuit, and the supreme Court’s limit of the use ofsettlements to skip priority creditors in bankruptcy proceedings.This issue also includes a book review of “Public Corruptionand the Law” by David hoffman and Juliet sorensen and apiece about Operation Greylord, by Terry hake, the lawyer whoworked undercover for the FBi and the U.s. Attorney’s Officein the investigation that culminated in significant indictmentsand convictions of judges and lawyers for corruption in theCircuit Court of Cook County. Finally, an article about theintersection of politics and three milwaukee judges who facedimpeachment is provocative.

i look forward to seeing you at one or more of our eventsplanned for this year and encourage you to be a member of ourwonderful Association. For now, enjoy your Circuit Rider.

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Judge Richard A.PosnerAnnounceshis Retirement

effective september 2, 2017, Richard A. Posner, 78, retired as a Judge of the United states Court of

Appeals for the seventh Circuit. he received his commission on December 1, 1981 after being nominated

by President Reagan and confirmed by the senate. Judge Posner previously served as its Chief Judge

from 1993 to 2000. On his retirement, Chief Judge Diane Wood issued the following Press Release:

“it is with great regret that i announce the retirement of Judge Richard A. Posner after nearly

thirty-six years on the seventh Circuit.For more than 50 years Judge Posner has been one of

the leading public intellectuals in the United states – indeed, in the world. he is one of the most

distinguished people to ever sit on the federal bench. his opinions have had an impact around

the world. he has produced an unparalleled body of scholarship – books, articles, and public

commentary – covering virtually every legal topic that can be imagined. The impact Judge Posner

has had on this Court is immeasurable, and it is with the deepest gratitude that we wish him well.”

The Press Release went on to quote Judge Posner:

‘“After nearly thirty-six years, i have decided to retire from the seventh Circuit. it has been a

tremendous honor to serve on this Court. i thank my colleagues, past and present, for the

opportunity to work with them.

During my time on the bench, i have authored more than 3,300 opinions and presided over

many trials as a volunteer judge in the district court. i am proud to have promoted a pragmatic

approach to judging during my time on the Court, and to have had the opportunity to apply my

view that judicial opinions should be easy to understand and that judges should focus on the

right and wrong in every case. i look forward to continuing to teach and publish, with a particular

focus on social justice reform.’”

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3

it is 6:45 a.m., and i am sitting at my desk in my chambers sipping my first cup of coffee and struggling

with a difficult procedural issue about which i have to make a decision later today, and which was poorly

briefed by the parties. i pick up the phone and dial 2066. After a few rings, my call is answered.

“milt, i have a problem and need some help?”

“What’s the problem, Bob?”

i explained the problem to him and what the lawyers have argued.

“This is a new one on me, can you give me any help?”

“Well, what do you think?”

i tell him my initial thoughts, a bit embarrassed about how unformed they are.

“The lawyers really haven’t addressed the issue that i see here.”

“i think i remember dealing with this issue, or something close to it a while back. Let me see if i

can find my papers on it and get back to you.”

“Great.”

i really don’t expect a quick response, or perhaps, any response at all, but i am glad he at least didn’t

tell me i was totally off base.

Continued on page 4

*Robert Gettleman is a United States District Judge for the Northern District of Illinois. He was appointed by President Clinton in

1994 and became a Senior Judge in 2009. He graduated from Northwestern University School of Law and thereafter clerked on the

Seventh Circuit for Chief Judge Latham Castle and Chief Judge Luther Swygert.

MiltonShadur:theConsumate Judge

By Hon. Robert Gettleman*

4

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milton shadur:theConsumate Judge Continued from page 3

At 7:00 a.m. the phone rings. “here it is,” milt explains, and

proceeds to recite a holding of his from several years before.

“Ok if i come up to see you?”

“sure.”

i take the judges’ elevator to milt’s office on the 23rd floor. The

chambers door is open and milt is standing there, holding a

sheath of papers. i follow him into his chambers, which is piled

high with case books, treatises, briefs and draft opinions. There is

hardly an inch of open space on his conference table or his desk.

he sits down at the conference table and beckons me to sit

next to him.

“here it is,” he explains and proceeds to tell me the context of the

case he has recalled and the basis for his decision. it is not exactly

on point with my case, but close enough to lead me to an answer

to my problem. “i’ll get Wendy to make you a copy or get you

the citation to Fed. supp. or Westlaw,” milt offers.

We continue to talk about other matters involving the court.

milt is chair of the Rules Committee to which i have recently

been appointed. There are some difficult issues with which the

committee is dealing, and he explains them to me patiently and

seeks my opinion about them. “i’ll have to think about this,” i

demur. i am aware that milt shadur has drafted many of the

local rules on our court, notably the ones dealing with summary

judgment and pretrial orders. i am quite reluctant to give him an

off-hand opinion about such things. he pulls out the agenda for

the our next meeting, which is to take place in several weeks.

“Take a look at this and let me know if there is anything you

want to add to the agenda.” i leave his office enlightened and

somewhat in awe of his ability to recall a case that he decided

years past and jump effortlessly into the present and future.

i had been on the bench several years when this happened, and it

wasn’t the first time and wouldn’t be the last. i am an early riser,

but milt is even earlier, coming downtown from his home in

Glencoe, and getting into the office before 6:00 a.m. saturdays are

no exception. The court is his life. it is difficult, no, impossible, to

contemplate the court without milt shadur. After 37 years and at

age 93, and with his full mental faculties as sharp as ever, my friend

and colleague has reluctantly – and that is an understatement –

decided to retire due to physical disabilities. Although i have many

friends on the court, there will be no one to replace milt shadur.

his was one of the first calls i got after i joined the court in 1994.

“After you get settled, come up to see me,” he stated more as a

command than a request. Of course, i obeyed. As he did with

most of the other new judges on our court, milt spent hours with

me going over his method of handling his docket and managing

the hundreds of cases each of us had on our calendars. in those

first few months of being a federal district judge, i spent many

hours at milt’s side, both in and out of the courtroom, during

civil and criminal proceedings as well as pretrial conferences. i

had more questions than answers, and milt was always there to

help. he was a mentor in the true sense: selfless, brilliant, funny,

and genuine.

Of course, i knew of milt shadur throughout my 25 year career

as a lawyer in Chicago. everyone did. But i had never had the

opportunity to work with or against him in practice. i had a few

cases assigned to him after he took the bench in 1980, and confess

that in one of those cases he ruled against me and i was able to

get a reversal from the court of appeals. That never affected his

treatment of me either before or after i joined the court. Like much

of the advice and counsel he gave me as a new judge, i didn’t

always agree with or follow everything he suggested, but i always

respected the thought, sincerity and dedication behind every one

of his suggestions, whether it was how to run a judicial office or

how to decide a case.

so who is this man, milton i. shadur; this unique, valued friend,

colleague and mentor? how does one become a legal giant like him?

Judge Shadur’s Background

in retrospect, Judge shadur’s prominence and achievements

seem preordained: he graduated from the University of Chicago

in 1943, with a B.s. in mathematics. he was a Lieutenant (J.G.)

Continued on page 5

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milton shadur:theConsumate Judge Continued from page 4

in the Navy in World War ii from 1943 to 1946, serving as a

radar officer on aircraft carriers. Thereafter, he was – of course –

the valedictorian of his law school class at the University of

Chicago, where he was editor-in-Chief of the Law Review.

Two law review notes written by Judge shadur while still in

law school were quoted by the United states supreme Court.

Following his graduation from law school in 1949, Judge shadur

joined the law firm of Goldberg, Devoe & Brussell, which was

founded by Arthur Goldberg, who went on to be an Associate

Justice of the supreme Court of the United states. At the time

of Judge shadur’s appointment to the district court, the firm

was named shadur, Krupp & miller). At the firm, Judge shadur

combined a major transaction practice (including securities

registration, taxation, intellectual property, real estate, etc.)

with civil rights and civil liberties litigation.

Long before pro bono representation was recognized as

important by all segments of the bar, milton shadur lived his

professional life as a lawyer faithful to the principle that one

of the obligations of membership in the bar is the obligation to

render uncompensated legal services to those unable to afford

them. his entire professional life was dedicated to the principle,

best articulated by Justice Cardozo, that “‘[m]embership in the

bar is a privilege burdened with conditions.’ [A lawyer is ]

received into that ancient fellowship for something more than

private gain. he [is] an officer of the court, and, like the court

itself, an instrument or agency to advance the ends of justice.”

People ex rel. Karlin v. Culkin, 248 N.y. 465, 470-471, 162

N.e. 487, 489 (1928).

Judge Shadur’s National Stature

Judge shadur is a judge of truly national stature. Appointed by

President Carter in 1980, he quickly achieved recognition for

his exceptional brilliance and mastery of the broad range of

subjects that daily confronts a United states District Judge.

Well over ten thousand written opinions represent his prodigious

outpouring of thought and are a testament to his extraordinary

intellect and energy.

The late edward Becker of the Third Circuit called Judge shadur

“a jurist of extraordinary distinction.” In re Cendant Corp.

Litigation, 264 F.3d 201, 274 (3rd Cir. 2001). That Judge Becker’s

assessment is shared by judges throughout the nation is evidenced

by the fact that Judge shadur was regularly asked to sit by

designation on United states Courts of Appeals throughout the

nation. For many years, he regularly sat by designation on the

First, second, Third – where he sat on multiple panels with then

Judge Alito – sixth, Ninth, and Tenth Circuit Courts of Appeals

and from time to time on the D.C. Circuit as well. he has

authored approximately 130 published majority opinions and

32 published dissenting opinions (as well as a number of

unpublished opinions) for the Courts of Appeals on which he

was sitting.

his extensive participation on panels in the Appellate Courts

did not come at the expense of his own court: there was no

diminution in his carrying out his judicial duties in the Northern

District of illinois. indeed, to call Judge shadur a senior judge,

while technically accurate, is somewhat misleading because,

until recently, he carried a full criminal and civil case load.

Judge Shadur’s Lifelong Contributions to Federal Law

The volume and quality of Judge shadur’s opinions on our court

and on the several courts of appeals have made a contribution

to federal law perhaps unequaled by any district judge in history.

The intellectual and literary quality of his thousands of opinions,

which cover the entire spectrum of American law, are apparent

even upon a superficial reading. Central to Judge shadur’s sense

of craftsmanship is the principle that if the unexamined life

Continued on page 6

6

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milton shadur:theConsumate JudgeContinued from page 5

is not worth living, the unexamined (and unproven) principle is

not worth its implications. See Erie County Retirees Ass’n. v.

County of Erie, Pa., 220 F.3d 193, 219 (3rd Cir. 2000)(shadur,

J., dissenting). Thus, his opinions manifest rigorous analysis

and lyrical exposition in equal measure, and thereby are far more

than merely the resolution of an isolated dispute. Rather, they

serve as a guide to the decision of future cases and thus have had

a nationwide impact.

his opinions involving state actors have had an enormous impact

on the rights of thousands of individuals. early in his career, he

wrote numerous opinions as he monitored the implementation

of a desegregation plan for the Chicago public school system.

See, e.g., United States v. Board of Education of the City of

Chicago, 554 F. supp. 912 (N.D. ill. 1983); 567 F. supp. 272

(N.D.ill. 1983); and 567 F. supp. 290 (N.D.ill. 1983). in another

case having a substantial impact on the civil rights of many

individuals, Judge shadur held that illinois had systematically

denied prisoners in protective custody in illinois state prisons

various constitutional rights. See Williams v. Lane, 646 F. supp.

1379 (N.D. ill. 1986), aff’d, 851 F.2d 867 (7th Cir. 1988). See

also 548 F. supp. 927 (N.D.ill. 1982); and 96 F.R.D. 383

(N.D.ill. 1982).

Judge shadur handled the first case in the United states in which

the government sought the death penalty under the continuing

criminal enterprise statute. 21 U.s.C.§848(e). his was the first

opinion dealing with (and upholding) the statute’s constitutionality.

United States v. Cooper, 754 F.supp. 617 (N.D.ill. 1990). The

jury did not impose the death penalty, and the convictions – the

first under that statute – were upheld on appeal. 19 F.3d 1154

(7th Cir. 1994).

United States ex rel. Green v. Washington, 917 F. supp. 1238

(N.D. ill. 1996), is another instance in which Judge shadur’s

ruling significantly affected the constitutional rights of a broad

class of litigants. There, Judge shadur found that the class members

were deprived of constitutional rights because resolution of their

criminal appeals was substantially delayed as a consequence of the

state’s failure to appoint a sufficient number of attorneys to handle

these appeals. The consequence of that failure was that a very

large percentage of defendants would serve their entire custodial

term before the appeal was heard.

in Association of Community Organizations for Reform Now v.

Edgar, 880 F. supp. 1215 (N.D. ill. 1995), aff’d, 56 F.3d 791

(7th Cir. 1995), Judge shadur upheld the constitutionality of the

federal “motor voter” legislation and forced illinois - which had

resisted its obligations - to comply with the law. in Federation

of Adv. Industry v. City of Chicago, 12 F. supp. 2d 844 (N.D. ill.

1998), Judge shadur held that limitations on cigarette advertising

imposed by the City of Chicago were preempted by federal law.

While he was reversed in part by the seventh Circuit (189 F.3d

633), the supreme Court in Lorillard Tobacco Co. v. Reilly, 533

U.s. 525, 546-51 (2001), came to the same conclusion as did

Judge shadur.

Judge shadur has written so many opinions in cases of first

impression involving federal civil procedure that he has been a

major influence in that area. One example of these cases is found

in Chesny v. Marek, 547 F. supp. 542 (N.D. ill. 1982), in which

Judge shadur concluded that a rejected Fed. R. Civ. P. 68 offer

followed by a less favorable verdict at trial cut off recovery of the

civil rights plaintiffs’ attorneys’ fees. The seventh Circuit

affirmed in part and reversed in part, but Judge shadur’s

conclusion was upheld by the supreme Court. Marek v. Chesny,

473 U.s. 1 (1985).

Parnes v. Heinold Commodities, Inc., 548 F. supp. 20 (N.D.

ill. 1982), was the first reported case to recognize the

“person”/”enterprise” dichotomy under civil RiCO, 18 U.s. C.

§1962(c)., That conclusion was also affirmed by the supreme

Court. See American Nat. Bank & Trust Co. of Chicago v.

Haroco, Inc., 473 U.s. 606 (1985). in Club Assistance Program,

Inc. v. Zukerman, 598 F. supp. 734 (N.D. ill. 1984), Judge shadur’s

analysis and attempted reconciliation of illinois cases under its

long-arm statute was later adopted by the illinois courts as the

substantive law of illinois. in In re Amino Acid Lysine Antitrust

Litigation, 918 F. supp. 1190 (N.D. ill. 1996), In re Bank One

Shareholders Class Action, 96 F. supp. 2d 780 (N.D. ill. 2000),

and In re Comdisco Securities Litigation, 180 F.supp.2d 943

(N.D.ill. 2001), Judge shadur wrote comprehensive opinions

discussing, and adopting, a competitive bid procedure to determine

lawyer representation of a plaintiff class.

Continued on page 7

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milton shadur:theConsumate Judge Continued from page 6

Judge Shadur’s Contributions to the Administration of Justice

Judge shadur has contributed significantly to the administration of

justice throughout the nation by his work on the Judicial Conference

Advisory Committee on the Rules of evidence, on which he served

for nearly 10 years from the time of its reconstitution in 1993 (the

Committee had not existed since 1975). The nationwide importance

and impact of the work of that Committee needs no elaboration.

Judge shadur chaired that Committee from late 1999 until

september 30, 2002.

Before that, he served as the Chair of the subcommittee that

authored the December 1, 2000 amendments to evidence Rules

701 through 703 relating to expert and opinion testimony. Judge

shadur was one of the two principal draftsmen of the amendments

– amendments that have had a profound effect on the trial of cases

in the federal courts.

Judge Shadur’s Writings and Lectures

Judge shadur has been a sought-after lecturer at judicial and bar

seminars around the country. he developed comprehensive voir

dire and jury instructions for use in federal death penalty cases,

which have been adopted by the Federal Judicial Center and are

used generally in death penalty cases nationwide.

he has taught at federal judicial conferences throughout the

country, repeatedly at the seventh Circuit Judicial Conference,

at the Federal Judicial Center new judges’ school, the annual

meeting of mDL transferee judges, and every year at numerous

educational conferences sponsored by such groups as the

American Bar Association, the Chicago Bar Association, the

Federal Bar Association, the American Judicature society, the

American Law institute, the National employment Lawyers

Association, and the American Civil Liberties Union.

in addition to his extraordinary judicial productivity and other

activities, Judge shadur has been both teacher and model through

his extrajudicial writings. A mark of his recognized brilliance

and national stature is his authorship of Chapter 12 of moore’s

FeDeRAL PRACTiCe, 3d ed. (2004)(“Defenses and Objections:

When and how Presented - By Pleading or motion - motion For

Judgement on Pleadings”). The range of topics about which he

has lectured include such diverse subjects as employment law,

class actions, settlement, attorney ethics, experts, criminal law,

sentencing and evidence.

Judge shadur’s publications include “Traps for the Unwary in

Removal and Remand,” 33 Litigation 43 (spring 2007); “An Old

Judge’s Thoughts,” 18 Chi. Bar. Assn. Rec. 27 (2004); “Trials or

Tribulations (Rule 56 style)?,” 29 Litigation 5 (Winter 2003);

“Private securities Law Reform Act: is it Working?,” 71 Fordham

Law Rev. 2363 (2003)(panel); “Task Force Report: ‘Against the

manifest Weight of the evidence,’” 74 Temple Law Review 799

(2001); Task Force Report: “Against the manifest Weight of the

evidence,” 74 Temple L.Rev. 799 (2001); “The Unclassy Class

Action,” 23 Litigation 2 (Winter 1997); “Twenty years of Change:

hardball Litigators,” 20 Litigation 21 (Fall 1993); “Are Federal

Courts Necessary?,” 18 Loyola Univ. of Chi. L.J. 1 (1986); “A

New Judge’s Thoughts,” 7 Litigation 5 (summer 1981). See also

“how Appealing: Twenty Questions for the Appellate Judge,”

April 19, 2004, http://20q-appellateblog.blogspot.com.

Judge Shadur’s Contributions to the Advancement of the

Rule of Law

Judge shadur’s involvement in public activities that demonstrate

his commitment to the public weal include his membership on

the Visiting Committee of the University of Chicago Law school

from 1999 to 2002. he served as Chairman of that Committee

from 1971 to 1976 and was a member from 1989 to 1992. he

has been a member of the Board of Trustees of the Ravinia

Festival and became a Life Trustee in 1994. The Ravinia Festival

Lawndale Partnership was launched in 1998 in response to the

community’s expressed need to have greater access to mainstream

fine and performing arts institutions and more opportunities

for cultural enrichment.

Continued on page 8

8

The Circuit Rider

milton shadur:theConsumate JudgeContinued from page 7

While in private practice, Judge shadur served from 1975 to

1980 as counsel to the illinois Judicial inquiry Board. and also

chaired the illinois supreme Court Character and Fitness

Committee for the First Appellate District.

Judge shadur also served as Director of the Chicago Bar Foundation

from 1978-1983; secretary of the Chicago Bar Association and

member of its Board of managers; Chairman of the Association’s

Legislative Committee; Chairman of the Association’s Judiciary

Committee; member of the Board of editors of the Association’s

Chicago Bar Record; Chairman of the Association’s Professional

Responsibility [ethics] Committee; and Chairman of the

Association’s special Task Force on Lawyer Advertising and

Related subjects. At the University of Chicago Law school,

Judge shadur has also served as Vice President and a member

of the Board of Directors of its Alumni Association.

in may 2007, Judge shadur was named a “Legal Legend” by the

American Constitution society, and in June 1993 was awarded the

Professional Achievement Citation by the University of Chicago.

it is thus altogether fitting that the Chicago Bar Association has

awarded to Judge shadur its Lifetime Achievement Award. it

is the first such award that the Association has ever presented.

Judge shadur will be honored at a reception at the standard

Club on December 5, 2017. No one could be more deserving

of such an award than he.

* * * * *

Judge shadur’s contributions as a teacher do not stop with his

judicial opinions, extrajudicial publications and lectures. The

wise and generous help and counsel that he unselfishly gives

all his colleagues – from the moment a new judge is nominated

and continuously thereafter – has made him a cherished member

of our court.

As i noted earlier, at the beginning of a new judge’s tenure,

Judge shadur spends significant time mentoring the new judge

on the basics of judging. But that is just the beginning. he is

always available to answer substantive questions, not only from

new judges but from any of his colleagues. it does not matter

how busy he is, he always makes time and as much time as is

needed. his knowledge of the law is truly encyclopedic and his

intellectual curiosity is boundless. Thus, if he does not know

the answer, he will do what is necessary to get it. everyone on

our court has been the recipient of his generosity of spirit.

Judge shadur wrote the Rules of Professional Conduct that

have been adopted by the Northern District of illinois. he

also served as the first chair of the Rules Committee for the

Northern District of illinois, drafting many of our local rules.

Judge shadur’s judicial accomplishments and his involvement

in activities manifesting his commitment to the improvement

and benefit of society are a continuation of his extraordinary

achievements before becoming a District Judge: Judge shadur

is a past member of the American Bar Association’s special

Committee on youth education for Citizenship and is a Fellow

of the American Bar Foundation. he was a Trustee of the Village

of Glencoe, illinois, where he continues to reside. he is a past

Director of the Legal Assistance Foundation of Chicago and of

the Law in American society Foundation. he was a member of

the Governing Council of the American Jewish Congress and of

its Commission on Law and social Action, as well as Vice President

of the Chicago chapter of that organization and Chairman of

the chapter’s Commission on Law and social Action.

* * * * *

so those are the stats and the CV. But of course, there is

more to the man than those accomplishments. milton shadur’s

commitment to our court, the extended “court family,” and the

fair and efficient administration of justice that we pursue every

day has been unmatched. in my 23 years as a judge, i cannot

remember a single monthly judges’ meeting at which milt shadur

did not participate and contribute. sometimes it was to correct

the minutes of the last meeting, a grammatical error in a proposed

rule, or a substantive error in something under consideration

by the court. in one of the most important things we do as a

group, the selection of magistrate judges, milt was always a

source of insight and perception.

it is 6:45 a.m., and i am sitting at my desk pondering a difficult

procedural question that i am supposed to rule on this morning.

i swivel my chair around to pick up the phone and dial my

friend and colleague for help. But there will be no one there

to answer. i miss him already. And i am not alone.

The Circuit Rider

9

Of the Constitution’s First Amendment, it is sometimes said, “it is first because it’s first.” That

can’t be right. Notwithstanding the amendment’s prominence in American life, it was not part of the

Constitution’s original text. it was not even the first amendment proposed in 1789. The real “first”

(which would expand the house of Representatives to more than 6,000 members) remains twenty-

seven states shy of ratification, and the real “second” (limiting congressional pay raises) was ratified

only in 1992, becoming the Twenty-seventh Amendment.

Rule 1 of the Federal Rules of Civil Procedure suffers from a different sort of disconnect. it is listed

first, not just because the rule was viewed as important, but because the rule was intended to shape

how all the other rules were to be applied. yet the call for “just, speedy, and inexpensive” litigation

often seems more chestnut than lodestar. The time and costs associated with modern discovery practice

are much of the reason why.

A new pilot project that has been launched in the Northern District of illinois and the District of

Arizona has Rule 1 in mind. There is much to commend the effort, but some practitioners remain

wary. Among other things, they fear that the essential feature of the pilot — early, court-mandated

Continued on page 10

*Dan Fine is a Partner at Barack Ferrazzano Kirschbaum & Nagelberg LLP in Chicago where he focuses on complex commercial

litigation. He earned a Bachelor of Arts from The College of William & Mary (Go Tribe!) and his Juris Doctor from the University

of Chicago Law School. Dan previously clerked for Judge Robert M. Dow, Jr., of the United States District Court for the Northern

District of Illinois, and then for Judge Joel M. Flaum of the United States Court of Appeals for the Seventh Circuit. His interests

include spending time with his family and, in his quiet moments, thinking about subject-matter jurisdiction.

Mandatory InitialDiscovery:JU s T, sP e e D y, A N D iN e x P e N s i V e O R

NA s T y, BR U T i s h, A N D sh O RT?

By Daniel R. Fine*

10

The Circuit Rider

mandatory InitialDiscoveryContinued from page 9

discovery — at once interferes with the adversary process and

fails to address problems that rankle litigators who (already)

take their discovery obligations

seriously.

The Mandatory Initial

Discovery Pilot Project:

An Overview

The mandatory initial Discovery Pilot

(“miDP”) project is a three-year study,

whose features are modeled off of the

Arizona Rules of Civil Procedure. The

pilot is operating in the Northern

District with the blessing of the Judicial Conference of the

United states. in keeping with Federal Rule 1, the pilot aims to

“promote justice, reduce costs, and increase speed in the fair

resolution of claims.”

The miDP applies to nearly all civil cases filed in the Northern

District’s eastern Division since June 1 of this year. (All but a

few judges are participating, and almost all types of civil cases

are part of the pilot.) At a high level, the miDP’s principal

features are these:

Court-Ordered Discovery. Before parties can obtain thekeys to unlock broader discovery under the federalrules, parties are required early in a case to identifywitnesses and produce documents relevant to anyparty’s claims or defenses — even if doing so wouldcause self-inflicted injury. Production of documentsoccurs quickly at the outset of litigation. Parties mustsign verifications and supplement their responsesthroughout the life of a case.

Early Factual and Legal Clarity. Parties are required todisclose the facts relevant to each of their claims anddefenses and identify the legal theories supporting thoseclaims and defenses. Parties must also provide acomputation of each category of damages and describe

the evidence that supports the calculation, as well asidentifying materials that bear on the nature and extentof any injuries.

No Opt-Out. With very narrow exceptions, parties cannotopt out of the mandatory, court-ordered discovery. Andthere can be no cheating by gentleperson’s agreementeither; parties must file notices of service with the courtfor the initial responses and any supplements. Parties arenot excused from providing responses because theyhave not yet investigated the facts or because theiropponents have failed to provide required information.

Motions to Dismiss Do Not Pump

the Brakes. Filing a motion todismiss does not toll the time to filean answer, although the court hasleeway when it comes tojurisdictional and immunity-basedmotions to dismiss.

During and after the miDP, the pilot

aims to test whether implementing

these changes furthers Rule 1’s goals.

For this reason, the pilot applies broadly,

and its exceptions are narrow.

The Need for the MIDP: Some Views from

the Bench

Two of the moving forces behind the pilot were Judges Amy st.

eve and Robert m. Dow, Jr. of the Northern District of illinois.

Judge st. eve is a member of the U.s. Judicial Conference’s

Committee on the Rules of Practice and Procedure, also known

as the standing Committee, which oversees several national

rule-making committees. Judge Dow is a member of the Advisory

Committee on Civil Rules. Both of those committees have been

actively studying potential pilot projects and have approved

the miDP as well as a second pilot, focusing on accelerating

the time for moving a case from cradle to grave, in which the

Northern District is not participating.

As Judge Dow observes, the Northern District of illinois has

been at the forefront of some recent innovations in practice and

procedure. Among the success stories are the seventh Circuit’s

Continued on page 11

mandatory InitialDiscoveryContinued from page 10

e-Discovery Pilot Program and the Northern District of

illinois’ Local Patent Rules. “if pilot programs in federal courts

can be likened to laboratories of democracy,” he explains, “our

district and circuit have proved particularly productive labs.”

here, the experiment seeks to test whether litigation can be

hastened and costs reduced by forcing parties to reckon with

the facts of their cases early. Judge Dow puts it like this: “By

forcing parties to do more work earlier in the case, a principal

aim of the pilot is for parties to evaluate their cases earlier. The

hope is that in some sizable fraction of the cases, a realistic early

evaluation and disclosure of the good and bad evidence may

lead to settlements without the full expense of litigation.”

even where early settlement does not materialize, robust early

discovery may convince lawyers to forgo dilatory motions to

dismiss and to focus early on key depositions. As Judge Dow

notes, “we often see cases where lawyers who had learned the

case earlier might have been in position to advise their clients

of litigation risk sooner, which might have enabled both sides

to cut to the chase instead of sparring over peripheral matters.”

Judges in the Northern District understand that practitioners

have their doubts.

in response to the inevitable objection that the miDP may not

be right for all types of cases, you won’t hear disagreement from

the bench. But, like all systems of rules, the pilot aims to find

the right balance for broad swaths of cases — not just any given

case. “While litigants may incur costs in some cases that might

have been avoided if the case had been placed on a slower track

for early motion practice, it isn’t obvious how to identify those

cases,” says Judge Dow. The goals of the pilot include identifying

cases where mandatory discovery does not work or where rules

should be tweaked.

Judges on the Northern District have been encouraged by

experience among practitioners in Arizona. There, mandatory

initial disclosure of both favorable and unfavorable information

has been the rule for a quarter of a century. in their study of the

issue, the federal rules committees learned that Arizona lawyers

on both sides of the “v” have come to feel that, at least in the

mine run of cases, parties save money by not fighting over every

document and litigating every case the same way.

Early Skepticism from the Bar

Although many Arizona practitioners appear to have embraced

their state’s now-entrenched regime, the miDP is not without

skeptics among Northern District practitioners.

Among the concerns that practitioners have expressed are the

following:

Tight Timeframes And Higher Costs. For those whowork primarily on the defense side, there is a concernthat the miDP gives plaintiffs an unfair advantage.Plaintiffs can “prepackage” their initial discovery priorto filing suit. Defendants may then be forced toscramble. Contrary to the intent of the pilot, the tighttimeframe may require defendants to use larger legalteams to make timely disclosures, thus driving up costs.

Scattered Data. Added to the concern about tighttimeframes is the fact that many parties retain more datathan ever before, and those data may be spread far andwide. Practitioners today not only identify witnesses,but must learn the vagaries of how computer systemsare organized and where data are kept. When clients arelarge companies, or rarely litigate and are therefore ill-equipped to collect data in a way that preserveselectronically stored information, these concerns maybe magnified.

Private Ordering. Judges see only the fights that partiesbring to their courtrooms, but in many cases counsel areable to work cooperatively on a schedule thataccommodates the needs of the parties — and theworkload of their lawyers. mandatory discoverydisrupts that dynamic.

Privilege and Loyalty. The miDP requires production of“relevant” data, but relevance is often in the eye of thebeholder. Thus, the miDP may push lawyers to view

Continued on page 12

The Circuit Rider

11

12

The Circuit Rider

mandatory InitialDiscoveryContinued from page 11

disputes in a way that favors their adversaries ratherthan their clients. This may be in tension with a lawyer’sduty of loyalty. As one partner at an Am Law 200 firmnotes, “The ‘what happened?’ documentswill probably be relatively easy toidentify. But the ‘why did this happen?’documents will require attorneys toengage in line-drawing that a lawyershould not have to make on behalf ofanother party.”

“Borrowed Wit.” similar to the concernabove, some worry that the miDPforces parties to do the work of theiradversaries, contrary to our tradition ofadversary litigation. The concern hereechoes Justice Jackson’s concurrence inHickman v. Taylor, 329 U.s. 495(1947): “Discovery was hardly intendedto enable a learned profession toperform its functions either without wits or on witsborrowed from the adversary.” shouldn’t it be the job ofparties and their lawyers to ask for the informationlikely to prove a claim or establish a defense?

Increased Nuisance Value. some lawsuits seemcalculated to extract an early settlement. mandatorydiscovery may drive up settlement values across theboard because, in nearly all cases, a motion to dismisswill not toll the time to answer and parties will be unableto convince judges to stay discovery while a motion todismiss is under consideration.

Not every lawyer is bound to share these concerns. For every

attorney who complains about asymmetric discovery and

meritless fishing expeditions, there are others who complain

that their adversaries hide the ball and simply fail to produce

relevant documents sought in discovery. There is a reason why

Jim mcelhaney’s depictions of the law firm “Windstrom &

Crusher” hit home for readers of Litigation.

yet an organizing assumption of the miDP seems to be that

placing on parties the burden of identifying their own good and

bad documents will lead to a quicker and closer approximation

of the truth, hastening the resolution of many cases. Litigants

and parties too often fail to act honorably under the current

regime, however, and the question is whether imposing new

burdens will change behavior.

in the end, will changes to the rules actually have the desired

effect? here is one modest prediction on that score: not unless

judges punish attorneys and parties who fail to adhere to both

the federal rules and the strictures of the miDP.

Conclusion – TBD

in Judging Under Uncertainty, harvard

Law Professor Adrian Vermeule observes

that much of the work of judging comes

down to a stalemate of empirical intuitions.

Particularly where weighty constitutional

matters are concerned, judges bring their

own intuitions about the world to bear on

the cases they decide. Those intuitions

rarely can meaningfully be tested.

it is too soon to tell what life will be like

for judges and litigants under the miDP.

The hopes for, and concerns about, the pilot are based largely

on intuition. Over the next three years, we will get the

empirical data and experience necessary to see how those

intuitions shake out.

Writers Wanted!The Association publishes The Circuit Rider twice a year.

We always are looking for articles on any substantive topic or

regarding news from any district — judges being appointed

or retiring, new courthouses being built, changes in local

rules, upcoming seminars.

if you have information you think would be of interest,

prepare a paragraph or two and send it via e-mail to:

Jeffrey Cole, editor-in-Chief, at Jeffrey_Cole@ilnd.uscourts.gov

or call 312.435.5601.

13

The Circuit Rider

For years, Cook County Judges were taking part in armed robberies, rapes, child molestations and

murders. in accepting bribes to free the criminals committing these and many other crimes, the judges

were in effect part of the crimes. Any crime could be fixed from a traffic ticket to a mob hit.

For the United states Attorney’s Office (UsAO) in the 1970’s, the most shocking perversion of justice

was the freeing of notorious Chicago mob killer, harry Aleman. On the night of september 27, 1972,

Teamster Union truck dispatcher William Logan was leaving home for work, when Aleman called out

from the shadows, “hey, Billy!” As Logan turned around he was cut down by three shotgun blasts. A

neighbor walking his dog saw the short, slender gunman heading for a car, and a woman talking on the

phone glimpsed the man’s face through a window. she shuddered because he looked so much like Aleman,

whom she remembered from her old neighborhood. Aleman was charged with the murder, but a judge,

who usually found everyone guilty in bench trials, found him not guilty, despite the eyewitness testimony.

many in law enforcement felt the case was fixed.

The UsAO and the FBi had heard rumors about the alleged corruption in the Cook County court system

for a long time. in 1975, the FBi was wiretapping a group of organized crime gamblers. While listening

to the gamblers’ criminal conversations, the agents overheard an attorney brag to the gamblers that if they

Continued on page 14

*Terrence Hake is 1977 graduate of Loyola University of Chicago School of Law. He served for five years as prosecutor in the Cook

County State's Attorney's Office in Chicago, Illinois and later as an FBI Agent in Chicago. In April of 1980, he agreed to assist the

FBI and the United States Attorney's Office in an investigation of the Cook County Court system. For three and one half years he

worked undercover posing as a corrupt prosecutor by accepting bribes from attorneys and later as an attorney in private practice

making payoffs to judges and court personnel for the dismissal of cases. The investigation, known as “Greylord", resulted in bribery

and tax charges being filed against 103 judges, lawyers and other court personnel and is one of the FBI's most successful undercover

investigations. When the last Greylord trial concluded in 1994, Mr. Hake had testified at the trials of 23 defendants. After serving in

federal law enforcement for 23 years, he retired from the United States Department of Justice Office of Inspector General and

eventually returned to the practice of law as an Assistant State’s Attorney in Cook County. Mr. Hake retired in 2016 and he now

provides Professional Responsibility CLEs to attorneys.

OperationGreylord: CORRUPTiON iN The COOK COUNTy COURTs

By Terrence Hake*

14

The Circuit Rider

Operation GreylordContinued from page 13

were arrested for their gambling activities, they didn’t have to

worry about a thing. he told them that he could pay bribes to

Cook County judges to get them off. After the gambling

investigation concluded, the UsAO

approached the attorney and convinced

him that it was in his best interest to

cooperate, rather than being prosecuted.

he then laid out his corrupt activities in

bribing judges and became a Confidential

source (Cs). he agreed to wear a wire

and recorded conversations with a police

officer and a court clerk; however, he was

never willing to wire up on a judge or

lawyer. The source always had an excuse

as to why he couldn't do it.

After the Cs attorney did not fully cooperate, and after the

Aleman murder acquittal, the FBi worked with Assistant

United states Attorneys (AUsAs) Daniel Reidy, Charles

sklarsky and scott Lassar, under the supervision of U.s.

Attorney Thomas sullivan, to put together an undercover

proposal. The proposal was approved by the Department of

Justice, and in march 1980, FBi special Agent David Ries was

transferred to Chicago from Detroit to work undercover as a

criminal defense attorney. Ries, from North Central illinois,

went to law school at the University of illinois and had an

illinois law license.

The UsAO decided to notify public officials in the state of

illinois that they were going to conduct an undercover case

targeting the court system. The UsAO believed that a recent

illinois supreme Court case, In re: Friedman, required

notification to protect the law licenses of agent/attorneys and

Assistant United states Attorneys because fake cases would be

introduced into the court system and undercover FBi

agent/attorneys would be suborning perjury in presenting

testimony regarding these cases to judges. The UsAO felt it

could entrust the secret of this investigation, code named

Operation Greylord, with the former U.s. Attorney for the

Northern District of illinois, then governor, Jim Thompson.

After Thompson was notified, the UsAO thought the state’s

Attorney of Cook County, Bernard Carey, was trustworthy,

because he had complained about many cases being fixed

against his prosecutors, in particular the Aleman case.

When Carey was informed of the investigation, he mentioned

that one of his prosecutors, Terry hake, had recently complained

about cases being fixed in the murder, rape and child molestation

preliminary hearing courtroom. i was a 28-year-old Assistant

state’s Attorney (AsA), who had graduated from law school

three years previously. From the moment

i began my work as a prosecutor, i had

heard rumors about criminal defense

attorneys paying off judges and judges

taking bribes. As i worked my way through

the misdemeanor courts in Chicago, i

started losing cases in front of judges,

where the evidence was overwhelming

in the state’s favor.

eventually i was transferred to the

murder, rape and child molestation

preliminary hearing court at the main

criminal courthouse in Cook County. The rumor in that courtroom

was that if Lucius Robinson, Judge maurice Pompey’s bailiff,

sat in the jury box during a preliminary hearing, this was a

signal to Judge Pompey that Robinson had received the bribe

money from the defense attorney and Pompey could throw the

case out. interesting story, but i never saw Robinson sit in the

jury box during my three months in the courtroom. however,

Judge Pompey and Robinson did not have to go to such extremes

to fix cases. i eventually told the UsAO and the FBi that i was

sure that the most serious cases in the criminal justice system

were being fixed. But first, i complained to one of my supervisors

in the state’s Attorney’s Office about the corruption in Judge

Pompey’s courtroom. That was how state’s Attorney Carey

became aware of me and why he informed the UsAO about

my disgust with the courts.

The UsAO decided to take a chance on approaching me.

AUsA sklarsky made the telephone call to me, because i had

known Chuck when he was an AsA. i was brought down to

Continued on page 15

15

The Circuit Rider

Operation GreylordContinued from page 14

the Chicago FBi Office. i met with the FBi and U.s. Attorney

sullivan and AUsAs Reidy, sklarsky and Lassar. The UsAO

made me think that i was the entire focus of the investigation,

without telling me that Ries had been working undercover for a

month. i said that i had been informed by the state’s Attorney’s

Office that if i participated in the investigation, i would not be

able to practice law again in Cook County for five years. Reidy

told me, if i went undercover and made cases on lawyers and

judges, i would never practice law again in Cook County. After

two meetings, i said i would cooperate with the federal

government in Operation Greylord.

The UsAO decided that i would be assigned to Judge Wayne Olson’s

narcotics courtroom as an undercover AsA. Olson was rumored

to be one of the most corrupt judges in the county. The night

before i was transferred to Olson’s courtroom, an FBi agent and i

practiced with the Nagra body recorder, thinking that Olson and

the corrupt attorneys practicing there would take me in on their

schemes. But of course, it only works that way on television and i

did not make too much headway for about three months. in

August 1980, i received my first bribes from criminal defense

attorney Jim Costello. Costello had been both a corrupt police

officer and Assistant state’s Attorney, before becoming a defense

attorney. my first bribe from Costello was $50 to release a car

that had been seized with narcotics in it. Then the bribes

increased to $100.00 to dismiss felony narcotics cases. i was

wearing the Nagra recorder every day.

Costello took me into his confidence and related that he and

Judge Olson had cut a deal whereby Olson would refer defendants

to Costello, if Costello kicked back 50% of his fees to the judge.

Costello began paying $500 to $1,000 to the judge in his chambers

every Friday. Costello would come out of chambers and tell me

and my Nagra recorder about the payoffs. The UsAO decided

that this gave the FBi probable cause to bug Olson’s chambers.

This was easier said than done. A judge’s chambers had never

been bugged in the United states. The DOJ proceeded very

cautiously in making the decision to install the bug. After

considering the Title iii request for three months, it was approved

after i, sullivan and Reidy flew to Washington and met with

Director William Webster and the Chief of the DOJ Criminal

Division. Director Webster instructed the FBi agents in Chicago

that only agent/attorneys were to monitor the Title iii, because

bugging a judge’s chambers was so sensitive.

During the six weeks the bug was in Olson’s chambers, 10 lawyers

were overheard fixing cases with Olson. most importantly, Costello

and Olson were heard arguing about how much Costello owed

Olson for the week. They were arguing over $50.00! Costello

stormed out of the chambers and lamented to me what a “greedy

bastard” Olson was. i calmed Costello down and advised him to

pay Olson what he demanded because Olson was developing a

lot of business for him. Costello followed the advice and went

into the chambers where he paid off the judge. The importance

of this conversation was that it confirmed the conspiracy between

the judge and lawyer, and now all of my recordings of Costello

would be admissible against Olson in any future prosecution.

in early 1981, the Title iii ended and the UsAO decided that i

could be of more value as a criminal defense attorney. That way i

could roam throughout Cook County paying judges who were

looking for bribes. i quit the prosecutor’s office and became an

undercover attorney working for the FBi.

The DOJ decided it did not want me and Ries fixing the cases of

real criminals, who could then commit other crimes, after being

freed, because of a bribe paid by the government. so, in our roles

as defense attorneys, we represented dozens of undercover FBi

special Agents from throughout the country, who came to Chicago

to pose as criminal defendants and as witnesses in FBi created

criminal cases. in these cases, agents shoplifted, stole autos and

possessed illegal guns and narcotics. For example, i represented

an undercover agent (UCA) from Los Angeles, Luis Rivera, who

in a staged robbery, pushed UCA maryJo marino, also of Los

Angeles, to the ground and stole her purse. After practicing my

cross examination with sklarsky, i cross examined marino at the

trial, casting doubt on her iD of Rivera. Rivera was found not

guilty by Judge Pompey, after i paid Lucius Robinson $1,300 to

fix this felony case.

staging these phony cases was logistically difficult and complex

because the arresting Chicago Police Officers were not informed

of the investigation. Credit cards, identities and other personal

The Circuit Rider

Operation GreylordContinued from page 15

facts were backstopped. Guns, drugs and vehicles were procured

to be possessed, stolen and used in cases. A team of FBi agents

handled all the details in staging the cases.

such was the situation in 1981, when

Judge Brocton Lockwood, agreed to

wear a wire — in one of his cowboy

boots. Lockwood was a judge from

marion County, three hundred and

fifty miles to the south of Chicago. he

had first come to the big city because

downstate judges were used to ease the

backlog in traffic court. When he first

arrived, he didn’t even know what a

bagman was. shocked by what he saw

on a return visit, Lockwood decided to

call the DOJ in Washington, because

he felt he could not trust anyone in Chicago. The UsAO saw this

as a great opportunity to gather evidence augmenting the work

UCA Ries had been able to accomplish as a crooked attorney in

the Traffic Courts. Lockwood volunteered to take the Chicago

time owed by all the judges in his district. since he was recently

divorced, he claimed he just liked the singles action in the toddlin’

town. so, the judge boarded a train and took an apartment near

the Traffic Court Building for an indefinite stay.

Lockwood successfully introduced Ries to a major bagman, gruff

policeman ira Blackwood, and to Assistant Corporation Counsel

Thomas Kangalos, in charge of prosecuting drunken drivers and

other traffic violators. Blackwood had mob friends, and Kangalos

was a hyperactive gin drinker who always illegally packed a gun.

Ries went on to use Kangalos, Blackwood and another bagman,

Court Clerk harold Conn, to fix numerous criminal cases, not

only in traffic court, but throughout the county. These three bagmen

could fix cases with judges in many courtrooms because most of

the judges started out in traffic court to gain judicial experience,

before moving to assignments in misdemeanor and felony courts.

meanwhile, over the next two plus years, i used a series of

bagmen to funnel bribes to 10 judges. Once a fix was setup

through a bagman, i would arrive at the courthouse early and

visit the judge in chambers. With the reels on my Nagra turning,

i would ask the judge if he had received a phone call from the

bagman. When the judge would confirm it, i would then tell the

judge that my client was going to lie in his testimony at the trial.

These recordings played very well in front of juries.

my best bagman was Chicago Police Officer Jimmy LeFevour.

Jimmy could fix anywhere in the courts because he was the bagman

for Judge Richard LeFevour, his first cousin. Judge LeFevour

was the presiding judge of the municipal courts in Chicago, the

largest division of the circuit court. Judge LeFevour and cousin

Jimmy organized attorneys, who hustled and solicited clients in

the hallways of the courthouses, into a “hustlers Bribery Club”.

soon the the judge was collecting

$2,500 a month from the hustling

attorneys for the right to hangout

in the courthouse hallways and

unethically solicit clients.

After over three years of undercover

investigation, the secret of Greylord

leaked to the press on August 5, 1983.

it is thought that bagman ira Blackwood

might have leaked it. The FBi

approached Blackwood to cooperate

and he refused. Within a few weeks,

the press was onto the investigation.

it is unfortunate that Greylord leaked because another attorney had

recently joined the case to act as a corrupt lawyer in the civil

divisions of the circuit court. The day Greylord leaked i had fixed

the first case in a suburban courtroom, paying the judge $500 on

a drunken driving case.

shortly after the leak, Ries was exposed in the press and Judge

Lockwood held a press conference. my undercover role was not

exposed. On August 8, i was sworn in as a special Agent of the

FBi while i was still undercover. i remained undercover for an

an additional four months, recording conversations and trying to

fix cases, before i was exposed in the press in December 1983.

Two months later, i attended Quantico.

The first Greylord indictments were returned in December 1983,

under the supervision of U.s. Attorney Dan Webb. The trials began

in 1984 and would conclude in 1994. The trials lasted over 10

years because, as the UsAO and the FBi conducted historical

investigations and secured convictions, more and more attorneys

and judges cut deals and testified against other corrupt players.

Continued on page 17

16

17

The Circuit Rider

Operation GreylordContinued from page 16

AUsA sheldon Zenner conducted a massive investigation of

Traffic Court and numerous attorneys were indicted for their case

fixing, as was the chief judge, John mcCollom. One attorney,

testified that he had bribed 24 judges, who had sat in Traffic

Court. The same attorney estimated that he had paid Judge

mcCollom 200 to 400 times to fix mostly drunken driving cases.

in another Greylord-related investigation, AUsA Joseph Duffy

prosecuted and convicted Judge Frank salerno of taking bribes in

licensing court. This was a very lucrative assignment for salerno

because many Chicago business owners were more than happy

to pay bribes to the judge to ensure that they would not lose their

licenses for serving someone underage or having a filthy kitchen

in their bars or restaurants. salerno received nine years and was

the first judge to testify during the trials.

The largest Greylord indictment came in 1985 when Judge Ray

sodini and 21 codefendants were indicted for being part of a

bribery scheme in sodini’s courtroom and four other courtrooms

located in the Chicago Police headquarters building. This case

was prosecuted by U. s. Attorney Anton Valukas and AUsAs

Jim schweitzer and Jeff Rogers. All 21 defendants were

convicted, with nine defendants being tried together.

Greylord’s success led to corrupt attorney Robert Cooley

cooperating with the FBi. Cooley came forward of his own

volition in 1986 and wore a wire for three years. Cooley’s case

was called Operation Gambat. The lead AUsA on the case was

Thomas m. Durkin, now a federal judge in Chicago. One of the

first things Cooley told the UsAO was he paid $10,000 to Judge

Wilson in 1977 to find harry Aleman not guilty of murder.

Cooley did this at the request of Chicago mobster Pasqualino

marchone. Judge Wilson committed suicide in 1990, shortly after

Cooley’s cooperation became known. Aleman was convicted of

the 1972 murder in a 1997 trial. The courts ruled against his

claim of double jeopardy, reasoning that because the bribe had

been paid, Aleman knew he was not in jeopardy.

Gambat led to the indictment of three judges, two of whom

overlapped with the Greylord investigations. One of these judges,

Thomas maloney, was the last judge convicted in 1994. AUsAs

scott mendeloff, Bill hogan and Diane macArthur prosecuted

maloney under the supervision of U.s. Attorney Fred Foreman.

maloney’s fixes included three murder cases. maloney took

$100,000 from the Chicago mob to find one defendant not guilty

of murder and $10,000 to fix another murder by two brutal street

gang members.

By the time the maloney case concluded, 103 individuals had

been charged in what was by then a joint FBi and iRs CiD

investigation. The evidence developed by the iRs CiD, concerning

judges spending enormous amounts of cash above their judicial

incomes, dovetailed perfectly with the bribery evidence. The number

of charged individuals included 20 judges, 57 lawyers, 9 police

officers and 17 court personnel. Three judges died before indictment,

two by shooting themselves.

Today, Greylord is still recognized as one of the DOJ’s most

successful undercover investigations and one of its largest public

corruption cases.

Epilogue

Lucius Robinson was convicted of bribery and received three

years. he admitted to delivering over two hundred bribes to

Judge Pompey, only after the statute of limitations had expired.

Robinson later testified at Judge maloney’s trial. Judge Olson

and Costello lost their motion to suppress the Title iii tapes and

both pled guilty and received 12 years and eight years, respectively.

Policeman ira Blackwood received seven years. Tommy Kangalos

fled to Greece and died there in 2006 of cancer. harold Conn

received six years, but said the worst part was losing his county

pension. Judge LeFevour was convicted after a lengthy trial,

which AUsAs Dan Reidy and Candace Fabri prosecuted, along

with former U.s. Attorney Dan Webb. The star witness was his

bagman cousin, Jimmy, who by his cooperation saved his police

pension. The judge received 12 years and his cousin received over

two years by pleading guilty to misdemeanor tax charges. Judge

sodini took a plea for 8 years in the middle of his trial because

of the overwhelming evidence. Judge maloney was sentenced to

16 years in prison. in 1995, the seventh Circuit, in a 2-1 decision,

concluded that the district court had not erred in refusing to admit

evidence of claimed prosecutorial misconduct necessary to a

finding the conspiracy was not time barred. maloney was represented

on appeal by now magistrate Judge Jeffrey Cole. maloney was

the last Greylord defendant released from prison, in 2008.

my book, Operation Greylord: The True Story of an Untrained

Undercover Agent and America’s Biggest Corruption Bust was

published in 2015 and filming of a movie, based on the book is

to begin in 2018.

18

The Circuit Rider

Acommon problem arises in insurance cases when the policyholder controls the selection of

defense counsel: what is a “reasonable” rate for defense fees? When an insurer refuses to defend

entirely, the answer is relatively straightforward: the fees paid by the policyholder are deemed reasonable

as a matter of law. Taco Bell Corp. v. Cont’l Cas. Co., 388 F.3d 1069, 1075–77 (7th Cir. 2004).

But what about the situation where the insurer agrees to defend, but seeks to limit the rates it will pay

defense counsel? The policies themselves generally offer little guidance here. A policy, for example,

may define “defense costs” as “reasonable and necessary fees.” But what is a “reasonable” rate for a

given case? Naturally, insurers and policyholders often disagree on this point.

Case law in the seventh Circuit has not squarely addressed this point. Nevertheless, several courts in

the seventh Circuit have addressed the “reasonableness” question in other contexts, including

statutory fee-shifting provisions or contractual indemnification clauses. Those cases indicate that a

“reasonable” rate should be based on several factors, including the market rate actually charged by

defense counsel to other paying clients in similar cases and the skill and reputation of defense

counsel. Those factors should apply with equal force in the insurance context.

Disputes may also arise over case staffing arrangements or “block-billing” by defense counsel. here,

too, case law in the seventh Circuit instructs that these concerns should be analyzed in light of the

Continued on page 19

*Jesse Bair is an Associate at Perkins Coie LLP in Madison, WI where he specializes in insurance coverage litigation. He graduated summacum laude in 2009 from St. Norbert College and graduated summa cum laude in 2013 from the University of Wisconsin Law School, wherehe was Order of the Coif. He was also a Managing Editor of the Wisconsin Law Review. He received the Hughes-Gossett Award for Studentswhile in law school. He is the author of “Navigating Yates Memo Minefield and Broadening of Excess Side-A DIC D&O Insurance Policies”as well as “ʻThe Silent Man:’ From Lochner to hammer v. Dagenhart, a Reevaluation of Justice William R. Day,” which was published inthe March 2015 edition of the Journal of Supreme Court History.

Who, Me,Unreasonable?esTABLishiNG “ReAsONABLeNess”OFDeFeNse COUNseL Fees iN iNsURANCeCOVeRAGe LiTiGATiON iN The 7Th CiRCUiT

By Jesse Bair*

19

The Circuit Rider

Who, Me,Unreasonable?Continued from page 18

scope and complexity of the underlying action, as well as the level

of detail of invoices required by the law firm’s paying clients.

each of these issues is discussed below.

If others pay them, they must be

reasonable.

When a rate dispute arises between an insurer

and its policyholder, one position often advanced

by insurers is that they will decline to pay rates

higher than the “average” rate for legal

practitioners in the relevant “market.” According

to the insurer, rates below the average are

“reasonable,” whereas higher rates are excessive.

This approach, however, ignores the fact that

policyholders facing company-threatening

lawsuits will often need a specialized set of

lawyers, who are usually employed at large national law firms, and

whose rates are often higher than those of the “average” law firm.

Considering the risks posed to insureds facing high-stakes lawsuits,

a better gauge of “reasonableness” is the standard hourly rate actually

charged by the insured’s preferred counsel to other paying clients,

including the policyholder itself.

As the seventh Circuit has explained, “reasonable” hourly rates

are typically “derived from the market rate for the services

rendered.” Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640

(7th Cir. 2011). The “best evidence” of an attorney’s market rate is

his or her “actual billing rate for similar work,” Johnson v. GDF,

Inc., 668 F.3d 927, 933 (7th Cir. 2012) (emphasis added). This rate

is “presumptively appropriate” to use as the market rate. People

Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d

1307, 1310 (7th Cir. 1996) (internal citations and quotations omitted).

“Only [i]f the court is unable to determine the attorney’s true

billing rate . . . (because he maintains a contingent fee or public

interest practice, for example) should the court look to the next

best evidence ― the rate charged by lawyers in the community of

reasonably comparable skill, experience, and reputation.”

Muzikowski v. Paramount Pictures Corp., 477 F.3d 899, 909–10

(7th Cir. 2007) (internal citations and quotation omitted).

Applying those standards, district courts in the seventh Circuit

have awarded attorney fees calculated at hourly rates near the top

of the rate range charged by some of the nation’s top litigators.

E.g., Nat'l Rifle Ass'n v. Vill. of Oak Park, 871 F. supp. 2d 781,

788 (N.D. ill. 2012) (holding that attorneys were entitled to fee

award calculated at hourly rates of $1,020 and $880 where attorneys

charged other paying clients those rates: “[c]onsumers of legal

services are willing to pay those lawyers their respective hourly

rates of $880 and $1,020, and NRA is entitled

to recoup at those rates”); Shepard v. Madigan,

No. 11-CV-0405-mJR-PmF, 2014 WL

4825592, at *6 (s.D. ill. sept. 29, 2014)

(concluding that hourly rates up to $925 were

reasonable where the record “contain[ed]

evidence of comparable rates charged by

Washington, D.C. firms, and by [law firm]

in similar litigation”).

Defense counsel’s standard hourly rates

should carry the same weight when assessing

“reasonableness” in the insurance context.

Particularly when the policyholder is a regular

client of the defense firm, and pays the firm’s

standard hourly rates on a regular basis with no expectation of

reimbursement, the insurer should not be allowed to challenge the

“reasonableness” of those rates. Where clients actually pay the

firm’s standard rates, those rates are “presumptively appropriate”

to use as the market rate for the firm’s services in the statutory fee-

shifting context, and should be in the insurance context, too. People

Who Care, 90 F.3d at 1310.

What do you mean by “community” exactly?

As noted early, insurers often point to lower rates charged by other

practitioners in a given legal community to show that the rates

charged by the policyholder’s preferred counsel are excessive.

District courts in the seventh Circuit, however, have rejected this

type of argument where the firm in question shows that clients have

actually paid its rates in similar cases. in Six Star Holdings, LLC v.

City of Milwaukee, for example, a partner submitted evidence

showing that clients pay his standard hourly rate of $575 an hour

(the same hourly rate he requested in that lawsuit).

Continued on page 20

20

The Circuit Rider

Who, Me,Unreasonable?Continued from page 19

No. 10-C-0893, 2015 WL 5821441, at *3 (e.D. Wis. Oct. 5, 2015).

The City of milwaukee, however, challenged that rate as “excessive”

because a survey conducted by the state Bar of Wisconsin found

that, in 2012, the average hourly rate for “tort/personal injury”

lawyers was $207 and the 95th-percentile hourly rate for all private

practitioners in Wisconsin was $395. Id., at *4. The court rejected

the City’s argument, explaining that “the survey evidence does

not undermine the conclusion that the Olson firm’s rates are

reasonable” because the “best evidence” of an attorney’s

reasonable rate is “the rate paid by actual clients for similar

work.” Id.

moreover, the concept of the appropriate “legal community” within

which to compare the firm’s rates with other attorneys is itself

problematic. Where a policyholder is sued outside a major

metropolitan area, insurers will often attempt to define the relevant

“community” as the rates charged by law firms within the

geographic area where the underlying lawsuit is venued. When

a policyholder faces a company-threatening lawsuit, however,

the quality of its defense should not be impacted based on the

venue in which the underlying plaintiff chooses to file its lawsuit.

Cf. Northmobiletech, LLC v. Simon Prop. Grp., Inc., No. 11-

CV-287-WmC, 2013 WL 12090092, at *3 (W.D. Wis. may 21,

2013) (“Defendants did not choose to litigate in madison, they

were dragged here by plaintiff. The court will not punish defendants

for using their preferred counsel, who happen to work in a more

expensive market than this one.”).

several district courts in the seventh Circuit have rejected attempts

to limit the relevant “community” to a small geographic area.

E.g., Shepard, 2014 WL 4825592, at *4 (“Though [d]efendants

would have the Court cabin the discussion to east st. Louis or

st. Louis-area lawyers, the scope of the inquiry is not so

geographically lim[ited]. The test refers to a community of

practitioners, particularly when ‘the subject matter of the litigation

is one where the attorneys practicing it are highly specialized

and the market for legal services in that area is a national

market.’”) (quoting Jeffboat, LLC v. Director, Office of

Workers’ Comp. Programs, 553 F.3d 487, 491 (7th Cir. 2009));

Metavante Corp. v. Emigrant Sav. Bank, No. 05-CV-1221, 2009

WL 4556121, at *7 (e.D. Wis. Nov. 27, 2009) (rejecting argument

that attorney’s rates were not reasonable given the forum in

which the litigation occurred: “reasonable attorney’s rates are

premised from the attorneys’ market rates, not the local rates”)

(emphasis in original); Mathur v. Bd. of Trs. of S. Ill. Univ., 317

F.3d 738, 744 (7th Cir. 2003) (“By simply declaring that the lower

rate was appropriate because of the prevailing local rates in

southern illinois, without regard to the quality of services rendered

by the appellants, the district court abused its discretion.”).

This rule makes sense because the risks faced by an insured

with respect to an underlying lawsuit are not dependent on the

geographic location where the suit is venued; rather, the

policyholder’s risks are dependent on the scope and complexity

of the underlying lawsuit, as well as the experience and skill of

opposing counsel. if, for example, a proposed nationwide class

of plaintiffs sues a policyholder in madison County, illinois —

a largely rural and suburban county dubbed by some as “America’s

Class-Action Capital” — the policyholder still faces substantial

liability, regardless of the fact that it is facing suit in southern

illinois, as opposed to Cook County. yet under the geographic

conception of “reasonable” attorney fees, a policyholder would

be limited to advancement of attorney fees from its insurer at

rates only meeting or below the average rate for law firms in

edwardsville, illinois (population 24,293). That position is

extremely dangerous from a policyholder’s perspective. When a

policyholder faces a company-threatening lawsuit, its carrier

must ensure that the policyholder is adequately protected against

the case at hand, irrespective of the geographic location where

plaintiffs choose to file that lawsuit.

A better rule for “reasonableness” focuses on the skill and

experience needed for defense counsel to adequately defend

against the underlying case. instead of focusing on average rates

charged in a limited geographic area, when the scope and

complexity of the underlying case requires specialized counsel,

the relevant “community” for purposes of assessing reasonableness

should be based on the prevailing rates for lawyers of comparable

skill, experience, and reputation in the national marketplace,

irrespective of the geographic location where those lawyers

reside. Jeffboat, LLC, 553 F.3d at 490.

moreover, the reasonableness of these rates are often further

confirmed by the experience and reputation of the underlying

plaintiffs’ counsel. When the plaintiffs are represented by

highly experienced counsel, the policyholder, too, should be

represented by counsel with the requisite experience, legal

knowledge, and skill to match the plaintiffs’ attorneys. U.S.

Bank Nat. Ass’n v. Long, No. 13-C-0257, 2014 WL 3044617,

Continued on page 21

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Who, Me,Unreasonable?Continued from page 21

at *2 (e.D. Wis. July 3, 2014) (“The relationship between the

aggregate costs and the stakes of the case and the opposition’s

litigation strategy is another gauge for reasonableness.”); cf.

Metavante Corp., 2009 WL 4556121, at *7

(“[T]he court notes that the stakes in this

litigation were enormous and, given the

defendant’s choice to employ a high power

New york law firm to try the case, the court

does not find it unreasonable that metavante

hired a major Chicago law firm for trial.”).

Accordingly, the “reasonableness” analysis

in the insurance context should also take into

account the magnitude of the underlying suit,

as well as the skill and experience of plaintiffs’

counsel, and not be limited merely to the

geographic location where the underlying

plaintiffs chose to file their lawsuit.

It takes two to confer.

in addition to hourly rates, another issue

of contention between insurers and

policyholders will likely involve staffing of cases. insurers

will likely contend that too many lawyers are working on the

underlying defense, that too many lawyers are working on

individual projects, and that there is duplication of effort

between attorneys. This issue is especially likely to arise in a

case where both a corporation and its executives have been

sued. in that situation, each defendant will likely want

separate counsel.

Though insurers will likely contend that multiple firms working

on the same case will almost certainly perform redundant

tasks (thus warranting a reduction in the amount of defense

costs the insurers will advance), case law in the seventh

Circuit provides a strong basis for policyholders to justify the

fees incurred by separate counsel, particularly in large, complex

matters. Cf. Oldenburg Grp. Inc. v. Frontier-Kemper Constructors,

Inc., 597 F. supp. 2d 842, 847 (e.D. Wis. 2009) (“[i]t is not

uncommon for companies to hire more than one law firm to

defend them in litigation. here, OGi was exposed to over $10

million in liability, and thus hiring two firms to defend such

a large claim was not patently unreasonable.”). As the eastern

District of Wisconsin has explained, “just because the two

firms may have performed similar tasks does not mean that

their work was duplicative.” Id. moreover, “whether a party’s

counsel is guilty of staffing overkill depends on the circumstances,

including the complexity of the case and the length of the

litigation.” Stragapede v. City of Evanston, No. 12 C 08879,

2016 WL 6092630, at *2 (N.D. ill. Oct. 19, 2016). Thus,

especially in the beginning of a complicated lawsuit, there is

nothing inherently unreasonable about having a number of

attorneys assisting with the matter, particularly when the bulk

of the hours will be incurred by a smaller

litigation team. E.g., Driscoll v. George

Washington Univ., 55 F. supp. 3d 106, 115

(D.D.C. 2014) (rejecting claim that fee

application including hours worked by

thirteen different employees was inherently

“overkill” where the bulk of the hours were

attributable to a smaller litigation team).

invariably, the defense of any case will

involve meetings between lawyers on the

defense team, especially if multiple firms

are involved in the defense. insurers will

likely object to these meetings in an attempt

to reduce their payments of defense costs.

Again, however, courts in the seventh

Circuit have recognized that there is nothing

unusual or unreasonable about case strategy

meetings. E.g., Third Wave Techs., Inc. v.

Stratagene Corp., No. 04-C-0680-C, 2006

WL 517629, at *4 (W.D. Wis. Feb. 21, 2006) (“[i]t is inherent in

the nature of a complex case that the lawyers performing different

tasks have to meet and exchange information, plan their

prosecution strategy and assign tasks.”). in fact, courts have

explicitly recognized that “ʻ[t]he practice of law often, indeed

usually, involves significant periods of consultation among

counsel.’” Stragapede, 2016 WL 6092630, at *7 (quoting

Tchemkou v. Mukasey, 517 F.3d 506, 511–12 (7th Cir. 2008)).

These decisions make practical sense, as case meetings are

necessary in order to make strategic and informed decisions on

behalf of the defense team. Thus, although insurers may

criticize this common practice, holding team meetings early in

order to coordinate the case defense will likely save time and

money in the long run. On the other hand, preventing defense

counsel from meeting could hinder the insureds’ defense and

result in much higher defense fees later.

Continued on page 22

Who, Me,Unreasonable?Continued from page 21

Finally, insurers may also object to paying defense counsels’

reasonable travel costs. however, there is nothing unusual,

and certainly nothing unreasonable, about billing travel time,

particularly when lawyers travel by car. E.g., Six Star Holdings,

LLC, 2015 WL 5821441, at *6

(rejecting argument that fees representing

11.7 hours in travel time spent driving

between milwaukee and madison was

unreasonable: “it is presumed that a

reasonable fee includes reasonable

travel time billed at the same hourly

rate as normal working time.”). yet

even when attorneys travel by air, that

travel time is still regularly compensable.

E.g., United States v. All Funds on

Deposit with R.J. O'Brien & Assocs.,

No. 11 C 4175, 2014 WL 1876139, at

*7 (N.D. ill. may 9, 2014) (“[T]he

Court has enough experience

attempting to work in airports and

airplanes that it can safely say that claimants’ position on this

point is reasonable and that the government’s argument does

not provide a basis for reduction of the fee request.”).

insurers will likely seek to reduce defense cost payments

based on alleged over-staffing, team meetings, and attorney

travel time, among other issues. in light of the above-cited

authorities, however, such reductions should not occur as a

matter of course. insureds have strong arguments that multiple

attorneys should be permitted to work on a defense team, that

case meetings are beneficial (and save costs in the long-run),

and that attorney travel time should be reimbursed.

To block-bill, or not to block-bill.

Finally, an additional area of likely dispute between insurers

and policyholders is the manner in which legal time is billed.

if retained defense counsel “block-bills” their time (e.g.,

enters the total hours per day devoted to a matter rather than

specifying what individual tasks a lawyer performed and for

how long), policyholders can almost certainly expect that the

insurer will seek to reduce their defense payments on account

of that billing practice. importantly, however, if the invoices

submitted by defense counsel contain detail sufficient for the

law firm’s paying clients, case law indicates that those invoices

should also be sufficient for insurers. See In re Synthroid

Mktg. Litig., 264 F.3d 712, 722 (7th Cir. 2001) (“[T]he amount of

itemization and detail required is a question for the market. if

counsel submit bills with the level of detail that paying clients

find satisfactory, a federal court should not require more.”).

While some clients may refuse block billing, many others

accept the practice. Thus, if the policyholder is a regular paying

client of the law firm, and regularly accepts block-billed time

entries, the policyholder has a strong argument that insurers

should also accepts those invoices

without reduction.

Nevertheless, despite the above,

policyholders should encourage their

defense counsel to use itemized billing.

Block-billed time entries present an

easy target for insurers to point to

when seeking to reduce defense cost

payments. As a result, although

policyholders may be able to avoid

defense cost reductions based on

“block-billed” time entries if the

policyholder itself regularly accepts

invoices with similar levels of detail,

the policyholder (and its defense

counsel) can avoid complications down the road by using

itemized billing from the outset. While this type of billing may

take more time for defense counsel, the benefit of avoiding

disputes with insurers on this issue will likely outweigh the

administrative burden created by the change.

Conclusion

The issue of what constitutes “reasonable” defense costs will

continue to proliferate in the years to come. insurers will

recognize coverage, but seek to limit the rates it will pay

defense counsel. Though this issue is often negotiated — and

settled — outside of litigation, the issue is arising with increased

frequency in the insurance coverage context. As courts in the

seventh Circuit begin to address this unique topic, case law

involving statutory fee-shifting provisions or contractual

indemnification clauses will likely guide the analysis. After

all, the consideration of those cases only seems “reasonable.”

22

The Circuit Rider

23

The Circuit Rider

earlier this year, the supreme Court of the United states reversed the Third Circuit’s approval of a

so-called “structured dismissal” in the highly-anticipated case of Czyzewski v. Jevic Holding Corp.,

_U.s._, 137 s.Ct. 973 (2017). in Jevic, the secured creditors, facing a fraudulent transfer suit by the

unsecured creditors committee for their role in a failed leveraged buyout of the debtor, reached a

settlement that allowed for some distribution to general unsecured creditors in connection with

dismissal of the Chapter 11 case. But the settlement skipped the debtor’s former employees holding

wage claims entitled to priority treatment under section 507 of the Bankruptcy Code. The debtor’s

former truck drivers, with a judgment for their unpaid wages, complained that the parties could not

get around the priority scheme decreed by Congress through the expediency of a structured dismissal.

The Third Circuit approved the structured dismissal in this “rare case” based on “sufficient reasons”

supporting the relief, namely that the only alternative was a liquidation scenario where neither the

employees nor the unsecured creditors would receive anything. 137 s.Ct. at 986. The supreme Court,

by a 6 to 2 vote, reached the opposite result.

Writing for the majority, Justice Breyer noted that Congress provided three possible outcomes for a

Chapter 11 case under the Bankruptcy Code. hopefully, the debtor can confirm a Chapter 11 plan. if

not, the bankruptcy court might be called upon to dismiss the case, returning the parties to the status

quo ante (so much as possible). Or the bankruptcy court can convert the case to Chapter 7, resulting

in the appointment of Chapter 7 trustee to liquidate and distribute the debtor’s assets. 137 s.Ct. at 979.

Continued on page 24

*Mr. Christian is a Principal of David Christian Attorneys LLC with offices in Chicago and Kansas City, Kansas. He received his law degreefrom The College of William & Mary (Order of the Barristers) in 1998. He is a member of the bars of numerous federal and state courts.Before opening David Christian Attorneys LLC, he was a partner at McDermott Will & Emery and Seyfarth Shaw. He is the author ofnumerous publications and has been a featured speaker and panelist at seminars and conferences throughout the United States.

sUPReme COURT LimiTs Use OF seTTLemeNTs TO . . .

Skip PriorityCreditors inBankruptcy

By David Christian*

24

The Circuit Rider

SkipPriorityCreditorsinBankruptcyContinued from page 23

The structured dismissal in Jevic followed none of these paths.

The case would be dismissed, of course, but only

in conjunction with court-approved

transactions – outside of a plan – that

deviated from the priority scheme

commanded by Congress. holding that

“a bankruptcy court does not have such

a power,” the Court specified that “[a]

distribution scheme ordered in

connection with the dismissal of a

Chapter 11 case cannot, without the

consent of the affected parties, deviate

from the basic priority rules that apply

under the primary mechanisms the

Code establishes for final distributions

of estate value in business bankruptcies.” Id.

Justice Breyer acknowledged that events during the case might

mean that the parties could not always be returned to their precise

positions prior to bankruptcy. indeed, section 349(a) of the

Bankruptcy Code provides that a court may adjust the consequences

of dismissal “for cause,” but the Court read this as providing

flexibility to protect rights acquired in reliance on the bankruptcy

case. The Court also acknowledged that Chapter 11 provides

the courts with greater flexibility to fashion equitable relief

than in Chapter 7. Id. “But a bankruptcy court cannot confirm

a plan that contains priority-violating distributions over the

objection of an impaired creditor class.” Id. And now, under

Jevic, parties cannot generally escape this rule through a

structured dismissal.

This result provides safer footing in insolvency scenarios for

employees and other priority creditors (e.g., certain tax claims

of governmental units and claims by former spouses for domestic

support obligations). But the rule is not iron-clad. For one

thing, the Court’s decision makes clear that the affected parties

can consent to different treatment. Left unclear is whether

consent can be determined on a class-wide basis, as opposed to

requiring consent by everyone affected by the settlement, and

whether such consent can be implied. Practitioners can expect

hold-out creditors to use Jevic for leverage, arguing that their

individual consent must be obtained.

The Court also distinguished the end-of-

case settlement at issue in Jevic from

interim steps taken during the case, such

as so-called “first day” relief that might

provide for payment to critical vendors.

Proponents of such relief will need to

demonstrate “significant Code-related

objectives” served by variation from a

strict application of the priority scheme.

137 s.Ct. at 985. Practitioners can

expect litigation about applying the

principles of Jevic to first day and other

interim orders during a Chapter 11 case.

Another heavily-litigated issue, so-called “gift plans” whereby

a creditor agrees to gift its distribution to a junior class of

creditors in order to eliminate objections and obtain the

affirmative vote of the junior class, will also require consideration

of Jevic’s reasoning. Will non-consenting creditors skipped by

such a gift mount successful objections like the truckers in

Jevic? Can just one skipped creditor hold up confirmation of a

gift plan? Jevic’s strong statement about the importance of the

priority scheme as mandated by Congress strengthens the

objectors’ arsenal.

Finally, practitioners can expect litigation about Jevic’s

application in a Chapter 7 context. This author represented a

proposed class of former employees with priority wage and

Continued on page 25

25

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SkipPriorityCreditorsinBankruptcyContinued from page 24

WARN Act claims in the involuntary Chapter 7 case of a

failed fractional-ownership airline in Florida. The Chapter 7

trustee for the airline attempted to settle

claims against the directors and officers by

paying non-priority plaintiffs “outside” of the

bankruptcy estate. We objected, asserting that

the trustee could not sidestep the Bankruptcy

Code’s priorities by cleverly structuring

distributions under the settlement.

Although we resolved our case before the

supreme Court reversed in Jevic, the Court’s

decision should strengthen the hand of

priority creditors in similar situations.

Describing the priorities in section 507 of the

Bankruptcy Code, the Court plainly observed, “The Code

makes clear that distributions of assets in a Chapter 7 liquidation

must follow this prescribed order.” 137 s.Ct. at 976. “in

Chapter 7 liquidations, priority is an absolute command – lower

priority creditors cannot receive anything until higher priority

creditors have been paid in full.” Id. at 983. Practitioners may

see, however, Chapter 7 trustees attempt settlements that do

not strictly follow the priority scheme, arguing that Jevic is

distinguishable because it applies to the Chapter 11 context, and

claiming that their efforts to administer and expeditiously close

the Chapter 7 case serve the significant Code-related objectives

mentioned by Justice Breyer.

Practitioners should always think creatively

in attempting to fashion results that put an

end to litigation, especially in the zero-sum

context of an insolvency situation. As the

examples above show, however, respect for

the priority scheme mandated by Congress

in the Bankruptcy Code and the possible

exceptions left open by Jevic must be part

of the practitioner’s calculus in fashioning

settlements during bankruptcy.

Upcoming Board of Governors’ meetingsmeetings of the Board of Governors of the seventh Circuit Bar Association are held at the

east Bank Club in Chicago, with the exception of the meeting held during the Annual Conference,

which will be in the location of that particular year’s conference. Upcoming meetings will be held on:

saturday, December 2, 2017

saturday, march 3, 2018

All meetings will be held at the East Bank Club, 500 North Kingsbury Street, Chicago at 10:00 AM

26

The Circuit Rider

“Treason, Bribery, high Crimes and misdemeanors.” This is the constitutional basis for the

impeachment and removal not only of the President and Vice President, but federal judges (and other

“civil officers” of the United states), as well. however, impeachment proceedings have multiple purposes.

Judges who make an unpopular ruling, have a different political ideology, or is someone Congress

wants to leave the bench face the possibility of an impeachment investigation. indeed, investigations

of federal judges by the Congress under Article ii, section 4 of the Constitution are not unknown.

Judge Andrew G. miller, Judge James Jenkins (Judge miller’s son-in-law), and Judge Ferdinand A. Geiger

are three federal judges in milwaukee who went through impeachment investigations. The proceedings

started quickly after an unpopular decision and before appeals were heard. Getting the U.s. house of

Representatives Judiciary Committee involved before the lawsuits were finalized introduced politics

into an otherwise normal case proceeding. Fortunately, for the judges involved, the house of

Representatives refused to vote articles of impeachment. Judges miller and Jenkins continued to have

long judicial careers. Judge Geiger retired shortly after the investigation due to age and health.

Judge Miller and the Panic of 1857

Judge Andrew G. miller (judge from 1838-1873) had many political enemies. he was a Democrat in

a state that became overwhelmingly Republican. he came to Wisconsin from Pennsylvania to serve as a

territorial judge, and was unknown to the local legal community. he was plaintiff oriented, but the

plaintiffs were east Coast creditors, not the local debtors. in a memorial, Judge miller was noted as

Continued on page 27

*Barbara Fritschel is the Branch Librarian of the Library of the U.S. Courts of the Seventh Circuit located at Milwaukee, Wisconsin.She received her J.D. from the University of Wisconsin in 1980 and her M.L.S. from the University of Washington in 1992. She hasbeen with the federal library system for over 25 years, with the last ten years with the Seventh Circuit.

WhenUnpopular OpinionsMeet

Politics: ThRee miLWAUKee FeDeRAL JUDGes WhO

FACeD imPeAChmeNT iNVesTiGATiONs

By Barbara Fritschel*

WhenUnpopularOpinionsMeet PoliticsContinued from page 26

someone who was “exalted with his own sense of power” and

whose “love of power probably led him to

enjoy it more because it was irresponsible”.

Death of Judge Andrew G. miller, 37 Wis.

21, 28 (1875). By a quirk of the law, the

District Court of Wisconsin was not

assigned to a circuit court until 1862,

which meant disgruntled parties had to

make costly appeals directly to the U.s.

supreme Court. An Act to amend the

Judicial system of the United states, Pub.

L. No. 37-178, 12 stat. 576 (1862).

The articles of impeachment featured the

case of Brooks v. Martin, 69 U.s. 70 (1864)

and a variety of lawsuits regarding the La

Crosse and milwaukee Railroad. These

were not even his most unpopular decision,

that being In re Booth, (unreported) which

upheld the Fugitive slave Act. however,

the Civil War mooted that case by the time the impeachment

investigation started.

martin sued Brooks over fraud in a partnership to purchase and

sell certain land warrants given to mexican War veterans. martin

ultimately won the lawsuit, but he complained about several of

Judge miller’s practices including ex parte contacts with Brooks’

attorneys and delaying the entry of the judgment.

The major focus of the impeachment articles were the cases

dealing with the La Crosse and milwaukee Railroad. in 1857,

the United states suffered a “panic” (recession). While railroads

were not always the cause of these panics, they were among the

first industries to collapse. The capital (mostly mortgages, stocks

and bonds) needed to create and expand a railroad was

tremendous — one of the mortgages in this case was issued for

$13,000 per mile of track.

Railroads were vital to the nation, which is why they got federal

land grants help fund their construction. in the 1850s, there was

no national bankruptcy law. equity jurisdiction allowed the

courts to place railroads into receivership and appoint receivers

to take care of the business in a manner similar to a Chapter 11

Bankruptcy today. This was a new procedure in the 1850s.

The La Crosse and milwaukee Railroad was organized into two

divisions, the eastern Division from milwaukee to Portage, and

the Western Division from Portage to La Crosse. The railroad

could issue stocks, bond, and mortgages on either division

separately or on the line as a whole.

The details of the cases are not important.

(For details see Minnesota Co. v. St. Paul

Co., 69 U.s. 609 (1864)). eventually,

there were seven U.s. supreme Court

opinions dealing with the La Crosse and

milwaukee Railroad Co. issues involved

included the role of receivers in railroad

bankruptcies, whether those mortgages

that only covered one division of the line

included all or only part of the train stock,

whether stockholders could intervene in

the case, numerous orders regarding

foreclosure sales, and factual disputes in

the reports of masters and receivers.

essentially, no one was happy with the

rulings. Perhaps the complexity of the

case is best seen by the note of the

Reporter of the supreme Court at the end

of Bronson v. La Crosse and Milwaukee Railroad, 68 U.s.

405, 411 (1863) where he plaintively states:

The record of the case filled more than one thousandlarge 8vo. pages, of small pica type, set “solid;” arecord, therefore, itself greatly larger than the whole ofthe present volume. The discussion of this case, too, bycounsel, consumed no small fraction of a five months’term. The Reporter presume that he need make butslight apology for not reporting this part of the case inexisting circumstances.

Unfortunately, the Reporter will deal with this case five more

times.

Continued on page 28

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WhenUnpopularOpinionsMeet PoliticsContinued from page 27

The impeachment investigation started late 1863 and evidence

was gathered in early 1864 — it is difficult to be precise as

many of the statements are undated. On January 30, 1864,

there was a Petition of the members

of the Legislature of the state of

Wisconsin that read in part:

Without personal knowledge ofthe facts charged against JudgemiLLeR, they feel bound tostate there is a widespreadbelief, among both the membersof the Bar and the people ofthis state, that he has beenguilty of misconduct in office,disqualifying him to hold aseat upon the Bench.

This petition was signed by a majority of the senate and all

but eight members of the Assembly.

Judge miller was the only Wisconsin judge whose investigation

resulted in articles of impeachment. The cases mentioned

figured prominently in the articles but other articles included

charges of nepotism and favoritism. On march 25, 1864, the

house of Representatives rejected the articles of impeachment.

Judge miller would serve until 1873.

Judge Jenkins and the Panic of 1893

James G. Jenkins served on both the district court (1888-1893)

and the circuit court (1893-1905). in 1893, the country was in

another panic. Whereas railroads in receivership was new in

the 1850s, by the 1890s the practice was common. The receivers

for the Northern Pacific Railroad sought an injunction to prevent

a potential strike over wages. Judge Jenkins’ response to the

potential strike led to the impeachment investigation.

Judge Jenkins oversaw the receivership of the Northern Pacific

Railroad while he was a circuit judge. Until 1911, circuit

judges had concurrent trial jurisdiction with district judges in

many cases. District court judges had exclusive jurisdiction

over admiralty, trade statutes and seizure of land while the

circuit judges had exclusive trial jurisdiction over diversity

cases. Raymond L. solomon, history of the seventh Circuit

1891-1941, p. 2 (1981). The circuit court as a trial court would

be abolish in 1911 by the Judicial Code of 1911 (Pub. L. 61-

475, 36 stat. 1087 (1911)).

By 1893, judges were giving broad discretionary powers to

railroad receivers. Under receivership, all employees of a railroad

were officers of the court and could be held in contempt if they

failed to perform their duties. Judges

relied on the interstate commerce

clause, the sherman Antitrust Act,

and mail contracts with railroads

to keep the trains operating during

times of worker unrest.

Farmers Loan & Trust Co. v.

Northern Pacific Railroad Co., 60

F. 803 (C.C.e.D. Wis. 1894) is

known as the famous injunction

case. Judge Jenkins appointed

receivers for the Northern Pacific on August 15, 1893. Over the

course of the next few weeks, the receivers cut salaries on the

general pay schedules by various percentages. On October 28,

the receivers gave notice that all general pay schedules would

be abrogated on January 1, 1894 and new schedules would

be used. When the receivers heard there was discussion of a

strike, they applied for an ex parte injunction to prevent the

workers from walking out.

The injunction prohibited workers from:

combining and conspiring to quit, with or withoutnotice, the service of said receivers, with the object andintent of crippling the property in their custody, orembarrassing the operation of the said railroad, andfrom so quitting the service of the said receivers, withor without notice, as to cripple the property or preventor hinder the said operation of the railroad.

Farmers Loan & Trust Co. v. Northern Pacific Railroad Co.,

60 F. 803, 807 (C.C.e.D. Wis. 1894)

Continued on page 29

28

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WhenUnpopularOpinionsMeet PoliticsContinued from page 28

(embarrassing is used in the rare sense of meaning being a

hindrance, encumbrance, impediment, obstruction or obstacle).

The injunction was amended three days later to bring local and

national unions under its coverage.

Judge Jenkins’ injunction was the

climax of a series of court cases

enjoining strikes but no one had gone

as far to hold that the workers could

not quit. in his formal opinion at 60 F.

803 (C.C.e.D. Wis. 1894) Judge Jenkins

held that no right, including the right

to quit work, is absolute. Can a doctor

leave when the surgery is only half

performed? Can an attorney quit halfway

through a case? No. Therefore, the

workers must remain working for the railroad at pay levels

they had not agreed to. Judge Jenkins also expressed doubts

that a strike could ever be legal since previous labor protests,

such as the haymarket Riot (Chicago) and the Bay View

Tragedy (milwaukee), had been violent. The injunction was a

command to work until the receivers could find replacements.

Reaction was swift. On February 5, 1894, a resolution to

investigate Judge Jenkins was introduced in the house of

Representatives and was adopted on march 6. The house

investigation was pro-labor. They found the receivers had

never talked to the workers about the pay schedules, the

workers testified there had never been talks about striking and

the committee refused to endorse the idea that there could

never be a legal strike. The committee report looked at the

legal precedent and decided that Judge Jenkins’ decision was

a maverick. however, they did not find any evidence of bad

faith or corruption, so instead of recommending articles of

impeachment, the committee recommended some legal

changes to make the law clearer. The minority report from four

representatives argued this was a disagreement about the law,

which was a matter for the courts. The case was overturned by

Arthur v. Oakes, 63 F. 310 (7th Cir. 1894).

Judge Geiger and the Grand Jury

Judge Ferdinand A. Geiger (judge from 1912-1939) had a

great reputation. he was perceived as having strong ethics and

ran a no nonsense courtroom. The eastern District of Wisconsin

was chosen out of all of the federal district courts in the

United states, to be the site of a sherman antitrust action brought

against the three major automobile manufacturers and their

related finance companies. While Robert Jackson, Chief of the

Department of Justice Antitrust Division stated it was for the

convenience of the witnesses, many people believed it was

because of Judge Geiger’s reputation, developed over his 25

years on the bench. The district clerk’s

office also had a reputation for being

“tight” and unlikely to leak anything.

By 1937, the U.s. Attorney General

was ready to go after antitrust

violations. With West Coast Hotel v.

Parrish, 57 s. Ct. 578 (1937), the

supreme Court starting upholding

New Deal programs so the Justice

Department could focus on other

issues. This began a period of

“vigorous enforcement” of antitrust

laws and one of the case selection

criteria was the impact it would have on the nation. Thomas K.

Fisher, Antitrust During National Emergencies II, 40 mich. L.

Rev. 1164, 1180 (1942).

The automobile financing industry was a natural target. in

1937, General motors, Chrysler and Ford made 92% of the

automobiles sold in the United states and their related

financing companies accounted for 75% of automobile

financing. At this time, 55% of automobile purchases, both

new and used, were financed.

independent finance companies wanted part of this action.

They complained about several practices that kept them out

of the lucrative finance market. Allegedly, dealers who used

independent finance companies were unable to renew their

franchise agreements. Dealer’s wholesale financing was tied

to the retail financing. The manufacturer related finance companies

charged consumers a large excess reserve that was split between

the manufacturer and the dealer. This excess reserve significantly

increased the price of the car for the consumer.

Continued on page 30

29

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30

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WhenUnpopularOpinionsMeet PoliticsContinued from page 29

The grand jury for the eastern District of Wisconsin first met

in september 1937. Local papers noted the biggest case before

the grand jury was the automobile antitrust case. The number

of witnesses kept increasing from 50 to 200 to over 300. After

an initial flurry of activity, the grand jury slowed down. The

number of days between hearings grew, sometimes for a

couple of days, then weeks. meanwhile, in Washington DC,

the Justice Department and the automobile makers were

engaged in talks to see if a consent decree could be reach.

One of the automobile makers supposedly requested the talks,

but General motors protested. When Judge Geiger discovered

this, he told the Justice Department to stop the talks. There

was a dispute as to when the talks stopped.

On December 17, 1937, Judge Geiger held a hearing regarding

the consent decree talks. he found they had continued until

late November, after he was told they were discontinued. The

attorneys for General motors argued that the grand jury was

used to pressure the firms--either agree to the consent decree

or face criminal antitrust charges. Judge Geiger thought this

was unethical and an abuse of the criminal process. he dismissed

the grand jury, even though they had voted on the indictment

but had not formally returned it.

The Justice Department moved quickly. On Dec. 20, 1937,

Attorney General Cummings wrote to the house Judiciary

Committee, complaining about the dismissal of the grand jury,

six tax cases, the general processing of the criminal docket and

“other matters”. he asked for a hearing on those issues. This

reaction perhaps reflects a sense of betrayal by the Department’s

handpicked judge on what was expected to be an easy win.

These “other matters” were not enough keep the antitrust case

away from Judge Geiger until he dismissed the grand jury.

Assistant Attorney General Robert Jackson represented the

department. he argued that it was a common practice for the

Justice Department to use compulsion (but not threats) by

entering consent decree talks while there were related grand

jury proceedings. (There is evidence that this was not the case.

See harold F. Birnbaum, The Auto-Finance Consent Decree:

A New Technique in Enforcing the Sherman Act, 24 Wash.

U.L.Q. 525 (1939)). Judge Geiger was the only judge who

objected to the practice. Jackson tried to get the committee to

consider all of Attorney General Cummings’ complaints, but

the committee was not interested, especially after Jackson

conceded there was not an impeachable offense among them.

Once again, committee members asked if this was an attempt

to go around the court of appeals by appealing to Congress

instead. mr. Jackson conceded he did not know if there had

been any investigation by the Justice Department into whether

the decision was made in bad faith or because of corruption—

the complaint was made merely because of the judge’s ruling.

Because there was no evidence of malfeasance, the committee

refused further action. shortly after the Judiciary Committee

refused to take further action, the Justice Department got

indictments against the car finance industry in the Northern

District of indiana. Chrysler and Ford entered into consent

decrees. General motors went to trial and lost. The Justice

Department also issued a letter stating that it would be normal

policy to seek concurrent actions — criminal indictments and

consent decrees. Judge Geiger left the bench in 1939 because

of ill health and died shortly thereafter.

Summary

impeachment investigations can be used to intimidate judges,

to force them to leave the bench or harass them in hopes of

more “acceptable” rulings in the future. Congress has the duty to

provide oversight of federal officials and to impeach them when

necessary. As these three incidents show, there is a thin line

between oversight and trying to avoid the separation of powers

given to the different branches of government. Fortunately, for

all three judges, Congress upheld the separation of powers and

the independence of the judiciary. Absent bad faith, corruption

or a criminal act, the proper place for oversight of unpopular

opinions was with the courts. As stated in the minority report

for Judge Jenkins, “individually, we may not believe his law

was sound, and may not think it will be so pronounced by the

tribunal of appeal, but if he was honest and has given his

honest opinion honestly, it would seem as if the correction

should come from another source.”

minority Report, Receivership of the Northern Pacific

Railroad Company, h. R. Rpt. No. 52-1049, at 21 (1894).

31

The Circuit Rider

PUBLiC CORRUPTiON AND The LAW: Cases and materials

by David H. Hoffman1 and Juliet S. Sorensen**

The most subliminal glance at the 24/7 onslaught of news media makes it hard to escape the

observation that public corruption is a central aspect of our legal and political zeitgeist. A months old

presidential administration has been dogged from the outset with: allegations and investigations of

corrupt ties to foreign governments during and, some speculate, possibly affecting, the 2016 presidential

election2; non-disclosures and/or concealments of ties to foreign countries and actors by senior officials3;

accusations of possible conflicts of interest of the special Prosecutor (and his boss – the Deputy

Attorney General) who was chosen in the wake of the controversial summary dismissal of a sitting

FBi Director investigating administration officials4; and an unresolved welter of potential conflicts of

interest arising from the President’s complicated business ties and interests.5 Among other things. And

this fraught ethics and public corruption moment should not be hung solely on current political events.

Corruption is a major off-the-field problem in the world of sports.6 This is not lost on the American

public. To the contrary, in the two years preceding the most recent national election, a highly regarded

national survey of fears of the American public revealed that fear of a “terrorist attack” was a distant

second to fear of “corrupt government officials.”7

Beyond the numerous prompts, the now commonplace invocation of and civic discourse on corruption

occurs even though, or maybe in significant part because, it is ill-defined and fluid in concept, operating

Continued on page 32

*Joseph Ferguson is a former Section Chief in the United States Attorney’s Office for the Northern District of Illinois and currentlyserves as Inspector General for the City of Chicago and as a Lecturer and Co-Director of the Loyola University (Chicago) NationalSecurity and Civil Liberties Program

1David H. Hoffman is a partner in the Chicago Office of Sidley Austin, LLP and is an Adjunct Professor at the University of ChicagoSchool of Law. Mr. Hoffman previously served as a law clerk for Chief Justice William H. Rehnquist and Judge Dennis G. Jacobs of theU.S. Court Appeals for the Second Circuit. He was also a Deputy Chief in the United States Attorney’s Office for the Northern District ofIllinois after which he served a four year term as Inspector General for the City of Chicago.

**Juliet S. Sorensen is Associate Dean of Clinical Education and Director of the Bluhm Legal Clinic at Northwestern Pritzker School ofLaw, as well as Harry R. Horrow Professor in International Law, and prior to that was an Assistant United States Attorney for theNorthern District of Illinois.

Book ReviewBy Joseph Ferguson*

32

The Circuit Rider

Book ReviewContinued from page 31

more from a visceral intuition than clear guidelines and

parameters. We might be forgiven this state of affairs were it

the consequence of new and emerging technologies or

organizational paradigms, but corruption

was an, if not the, animating force to

many of the Constitution’s structural

components. Concerns about the darker

tendencies of the human heart and the

inclinations of monarchs spurred the

founding fathers to operationalize

mechanisms to counter the inevitable

corruption that would be corrosive to a

well-functioning republic that, to long

survive, must be seen as legitimate by

the population from which it derives its

authority and which it ostensibly exists to

serve.8 Leading corruption law scholar,

Fordham University Law school

Associate Professor Zephyr Teachout notes that Benjamin

Franklin’s first speech to the Constitutional Convention “was

about money, power and the inconsistencies of the ambitious

human heart.”9 While concerns about the vulnerability of the

fractured and debt-ridden states to internal competition and

external military threat from foreign powers precipitated the

move from the Articles of Confederation to a new form of

government, “[c]orruption, influence, and bribery were

discussed more often in the [Constitutional] convention than

factions, violence or instability.”10 The paramount concern

about corruption prompted hamilton to argue in Federalist No.

68 that “[n]othing more was to be desired than that every

practicable obstacle should be opposed to cabal, intrigue and

corruption.”11 On the face of it, the Founding Fathers had much

the same paramount fear as the American public does today,

230 years later. The Founding Fathers appear to have

accomplished their anti-corruption objectives if for no reason

other than there being, by Prof. Teachout’s well-researched

count, 23 separate anti-corruption provisions contained in the

Constitution, as amended.12

Leading political and judicial figures for the ensuing 170 years

generally followed the cues of the Founders and carried forth

with a broad understanding of corruption applied most particularly

through various forms of bribery and extortion laws.13 But the

jurisprudential milestones over the last 40-plus years has found

the regnant conservative wing of the supreme Court edging

increasingly away from the broad “originalist” anti-corruption

principle to a more narrow understanding of corruption under

the law, albeit in the name of a fairly broad and possibly

originalist-oriented view of the First Amendment Free speech

Clause. The result? A looming civic and

policy Tower of Babel where all construct

and freely speak their opinions with little

consensus on the meaning of the key

terms. The legal community therefore

owes an enormous debt of gratitude to

David h. hoffman and Juliet s. sorensen

for the thankless task of stepping into the

void with the first ever casebook devoted

to the subject -- Public Corruption and

the Law.14

The authors appropriately set the stage in

Chapter One with readings that shed light

on the definitional problem,15 the causal correlations and

consequences of corruption,16 and the painfully complex task

of investigating and prosecuting it even (and maybe especially)

where it is so extensive and manifestly corrosive of an important

public institution as to be widely known and systemic.17 in doing

so, hoffman & sorensen signal a shared perspective on the

challenges of the subject. The public’s visceral intuitions (mentioned

above) may be explained by a default to what the authors refer

to as a “moral lens”, which tends to define corruption broadly.

This view is distinguished, they explain, from both “economic”

and “cultural relativist” lenses. The former inclines toward an

efficient market redressment of deviant behavior (resulting in

a narrow legal definition of corruption), with the latter fully

recognizing the moral dimensions, but factoring prevailing

cultural norms into its policy line-drawing exercises.18 The

authors, finding each approach problematic, plant a flag for

Continued on page 33

33

The Circuit Rider

Book ReviewContinued from page 32

what they cast as a “pragmatic-republican” lens, which would:

“pragmatically ask how public corruption squares witha society’s system of government and the system’sunderlying public values, as defined byits core documents. in a republicansystem of government like America’s,where the fundamental value is that thegoverned own the government andmust provide their consent for publicofficials to exercise power, the lawwould define the contours ofcorruption – and the interest inpreventing corruption – based on the

threat to this system from actions

relating to public officials or elections.

The value judgments from thispragmatic-republican view ofcorruption come not from morality,efficiency, or a culture’s historicaltolerance level for corruption, but from

the harm to the system of government from specific

actions that may be considered corrupt, or that may

make corruption more or less likely. Public corruptionis, after all, a subject that relates solely to howgovernments and their officials function, so it is sensibleto judge corruption’s scope and importance by its effecton how those governments and officials function.”19

i read such an approach as casting the corruption strike zone

in a morality that is not boundless, relative and fluid, but rather

in a morality bounded by the core values formally embodied

in the core documented foundational structure of government

– our constitutional system, which as noted above, was forged

as an anti-corruption document. We would call illegal (or

corrupt) only that conduct resulting in or threatening unacceptable

harm to the integrity, (i.e., legitimacy), and operation of that

structure. What is detrimental to the system is simply not

allowed. What is not allowed is reduced to a roster of clear

prohibitions. The debate, in theory, can end.

This is a bold strike, but one i am not entirely confident

hurdles our current jurisprudential moment. in order to strike

down this path, it seems we would have to have to resolve the

comparative weighting and priority of inarguably competing

constitutional values. most notably, recent jurisprudence has

flipped the historical script by elevating First Amendment Free

speech (as well as Due Process) values to the front of the line,

ahead of anti-corruption values. how to resolve which should

come first is the very nub of our currently challenged state--

but more on this later.

After setting the table, hoffman & sorensen turn to shooting the

legal rapids of public corruption law. To do so, they structure the

book through a thematic organization of

the law and cases. The first grouping,

presented in Chapter Two, is styled

“individual Corruption: Traditional

Prohibitions on Bribery, Fraud, and Other

Crimes.”20 This grouping is appropriately

cast. The traditional crimes -- whose roots

generally are traceable to the common law

long pre-dating the country’s founding –

were, in fact, individual in nature. The

case law (and author introductions and

post-script analysis and commentary), is

broken out into subsections devoted to

distinct (exclusively federal21) crimes –

bribery (18 U.s.C. secs. 201(b) and 666), extortion under color

of official right (18 U.s.C. sec. 1951), gratuity (18 U.s.C. sec.

201(c)), honest services mail and wire fraud (18 U.s.C. secs.

1341/43 & 1346), and racketeering (18 U.s.C. sec. 1960 et

seq.). This is not as easy an organizational exercise as it would

seem. modern public corruption jurisprudence commonly

takes foundational concepts and elements from one statute –

say, bribery – and applies them outside their statutory fencing

to supply the basis for analysis where they have neither a

presence nor historical application – say, extortion, for

example. Thus, while efficiently walking the reader through

the aforementioned statutes provisions, buttressed by

instructive case law, hoffman & sorensen also take care to

give distinct, standalone treatment to the definitional elements

that waft over the entire corruption law landscape. For example,

quid pro quo, a phrase not found in any statute, and, until

recently, seldom invoked over the long jurisprudential arc of

the so-called “individual” prohibitions,22 receives rightful

standalone treatment, along with definitionally elusive statutory

Continued on page 34

34

The Circuit Rider

Book ReviewContinued from page 33

terms such as “corruptly”, “intent to influence, “thing of

value” and “official acts”.23

many casebooks can be something of a

shock and awe experience, dense with

secondary citations and quotes. Given the

complexity of the subject here, this,

mercifully, is not one of those books –

the authors clearly opted for quality over

quantity. The book’s fine excerpts from

key supreme Court cases are longer than

usual, which is a good thing. Given the

nature of the subject, it is the only way to

capture the important debates transpiring

across the competing separate concurring

and dissenting opinions that are common

to public corruption cases.24 A distinguishing

characteristics of a casebook in a field of

law that is fluid and evolving is its authors’ ability to identify

the right questions to frame comprehension of the materials,

and the jurisprudential treasures lurking under the tidal surges

of supreme Court jurisprudence. Where there is a lack of

clarity from the high court, the burden is carried by the lower

courts, where, of course, the practice of law is waged.

hoffman & sorensen’s offering excels in both respects.

indeed, the intelligence of this collection and its layout may be

reflected less in its provision of answers (which it could not do

anyway because there are few, or at least few that have legs)

but rather, in their North star fixation on the foundational,

doctrinal questions, through various eras and statutory and

jurisprudential developments. This focus enables coherent

analysis vertically, through time, as well as horizontally, within

any one period across simultaneously overlapping but, at times,

nearly incommensurable statutory regimes. Their choices of

lower court cases range broadly in a manner that suggests

exhaustive research coupled with surgical, tactical and incisive

selection. Two excellent examples of their lower court cherry-

picking are found in: (1) an extended excerpt from United States

v. Ganim,25 a multi-faceted racketeering, extortion, honest

services mail fraud and bribery case out of the second Circuit

in which future supreme Court Justice sotomayor puzzled

through the historical thicket in search of the required

specificity of a quid pro quo, which in that case was a promise

to perform a future, but unspecified act; and (2) the late Judge

evan’s seventh Circuit opinion in United States v. Giles,26 a

racketeering, mail fraud and extortion case which the authors

use to demonstrate the straits in which the circuit courts were

left in the wake of McCormick v. United States, 500 U.s. 257

(1991), and Evans v. United States, 504 U.s. 255 (1992).

many other such examples abound.

The navigation through the evolution of “individual” public

corruption law highlights the limitation

of that conceptual moniker. What in the

common law era were acts of individual

deviance against the crown, with the

conceptual border between the legal and

illegal reasonably well-understood, in

modern times involves individual acts

and actors exploiting weaknesses of

complex and culturally conflicted

institutions and structures. Because

traditional prohibitions generally are

common law crimes made statutory,

Chapter Two teases their inadequacy to a

more complex institutional and cultural

matrix, which is why their choice to lead

with the traditional prohibitions is an excellent setup for what

follows. Chapter Three, titled “Public Corruption and Power:

Patronage and Campaign Finance” might better be referred

to as institutional and/or structural corruption. institutional

corruption might, here, be better characterized as systemized

corruption, wrought variously of informal or official systems

that may additionally reflect a set of prevailing cultural precepts.

The chapter leads with political patronage, a both/and –

originally non-official systems of support for ethnic-based

immigrant communities or factions that, upon achieving some

degree of political ascendancy, are channeled into formal electoral

and governmental modalities. The result works best and most

for the winners who take the spoils. Fraud-like corruption within

those systems triggered statutory and regulatory constraints

starting at the federal level with the Pendleton Civil service

Reform Act of 1883 and working eventually down to the state

and municipal level (usually after court prescription, which,

too often, has been the way of things in Chicago and illinois).27

Continued on page 35

35

The Circuit Rider

Book ReviewContinued from page 34

As political patronage machines that provided a ready-supply

of field workers in election season were flushed from the

regular operation of government, money, the contemporary

“mother’s milk of politics,” became an

ever more necessary commodity to waging

a successful campaign. in its corruption

modality this took the form of pay-to-play

schemes.28 hoffman & sorensen devote

extensive space to the progression of

regulatory reforms to curb the corrupting

tendencies of money in the political

system, beginning, after a concise

historical lead-in, with the regulatory

campaign finance limits of Federal

Election Campaign Act of 1971 (FeCA),

as elucidated through Buckley v. Valeo,

424 U.s. 1 (1976). The book then moves

to a fine analysis of the limits of FeCA

and the consequent attempt to rein in the

proliferation of so-called “soft money” and corporate-funded

“issue ads” (left largely unregulated by FeCA) through the

Bipartisan Campaign Reform Act of 2002 (BCRA, (aka

mcCain-Feingold)). The book devotes nearly 40 pages of exegesis

to the resulting challenge to BCRA’s constitutionality from a

broad spectrum of interests in McConnell v. Fed. Elec. Comm’n,

540 U.s. 93 (2003), in order to give due attention to the eight

separate opinions through which the Court engaged nuanced

discussion regarding “campaign finance, the First Amendment,

and the nature of democracy” that, for the authors, “is arguably

unparalleled in any other area of the Court’s jurisprudence.”29

in similarly extended excerpting of multiple separate opinions,

usefully interspersed with incisive analysis, the book brings us

to Citizens United v. Fed. Elec. Comm’n, 558 U.s. 310 (2010)

and the present state of campaign finance law.

Chapter Three’s well-guided tour through the thicket of campaign

finance and election law, (bolstered by a quick jaunt through

gerrymandering as an institutional (i.e., structural or systemic)

corruption topic), has a bit of the relentless inevitability of

sherman’s march to the sea about it. most uses of money are

now regarded as political speech so highly protected that the

anti-corruption enterprise is all but pushed out of play. After

Citizens United, the First Amendment arguably may be seen as

rooted less in the rights of the speaker, and more inhering in

speech itself, with the identity of the speaker all but irrelevant.

Corporations are thus effectively elevated to full First Amendment

standing not necessarily because they have been conferred the

same rights as people, but because they generate speech through

their allocation of money to political objectives. Because of the

resource advantage corporations (and other moneyed interests)

possess, their speech generation activities crowd out those of

the little guy, and further are elevated in the jurisprudence such

as to crowd out most other constitutional values.30

There is little debate over the enormous

impact of money on our electoral system

and how we govern. Where there is debate

is over whether and in what ways it is

corrupt or corrupting. This chapter of

the book thus concludes with a section

on a specific theoretical platform for

reframing the assessment and legal

analysis of the enormous, largely corporate,

sums of money washing through politics.

The theory, which has wafted into both

Court jurisprudence and scholarly

analysis for the last forty years, but

without ever gaining traction, is referred

to as “equalization” which, in brief, posits a compelling interest

in the assurance of a fair and level playing field for all to participate

in and influence election outcomes -- bringing the campaign

finance system into alignment with the one person, one vote

principle.31 such an approach appears to bid either for a broader

definition of corruption, to include not just corruption in the

traditional sense, but in the sense of a system being corrupted,

as in having outcomes misaligned relative to policy objectives

or, alternatively, for an interpretation of campaign finance law

as something other than anti-corruption measures in the ordinary

sense of the term.32 i read this as a hopeful offering of a road

out from the current imbalanced state of affairs. Between such

a postulated depersonalized creep of the First Amendment Free

speech Clause and the insufficiency of traditional “individual”

corruption crimes to meet the institutional complexities of

modern society, the scope of the anti-corruption enterprise is in

full retreat in ways that run counter to both the priorities of the

Founding Fathers, as reflected in the very structure of the

Constitution, and the fears of the country today.

Continued on page 36

36

The Circuit Rider

Book ReviewContinued from page 35

Were the book to end here, hoffman & sorensen could claim a

signal achievement and important curricular contribution. But

they push on. Chapter Four tees up as an additional corruption

category “Public Corruption and the

Law Outside the United states.”33

The Foreign Corrupt Practices Act,

the throw weight in this chapter, is

an important component to the anti-

corruption enterprise and ethos.

historically, the pursuit of foreign

business in corrupt countries all but

impelled American companies to

engage in practices – think bribery --

that would be criminal at home or

else operate at a competitive

disadvantage. in order to be

competitive abroad, American

companies thus operated with two

or more different sets of ethical (and

legal) standards – the higher one at home and the rest in

certain countries abroad. in the context of any single country,

the operation of the latter inevitably threatens to corrode the

compliance culture of the former. Given the fact that a great

deal of domestic corruption involves corporate pursuit of

business with or regulatory benefit from the U.s. government,

the corrosive effect of double cultures within is obviously

problematic. The inclusion of the FCPA materials and commentary

thus appropriately broadens the authors’ effort to define the

anti-corruption enterprise. more practically, it makes the book

not only a critical curricular platform for future government

and criminal lawyers, but also one for future corporate lawyers

-- whether in Big Law or in-house – pointed to, among other

things, the ever-burgeoning corporate compliance practice field.

With the inclusion, the book positions Public Corruption Law

as a near imperative curricular subject. As for how well this

category fits with the rest of the book, as the authors note, the

FCPA – which includes both anti-bribery and accounting

provisions -- is itself challenged by uncertainty about scope

and interpretation because of comparatively sparse appellate

case law, leaving traditional domestic terms and concepts

coupled with district court opinions and Justice Department

guidance to frame understanding and practice.34 A perfect fit.

Writing a review of a casebook is a unique legal experience.

Few, if any, law students, practitioners, judges, or professors

for that matter, read a casebook straight through without

diversion or narrowing objective. indeed, i do not anticipate

doing it again, at least not in the foreseeable future! however,

with respect to a public corruption law text, the experience

magnified and deepened the surface level impression of a

complex legal matrix collapsing in on itself.35 Viewed on a

case-by-case basis, the mighty straining of courts to secure

pragmatic outcomes in the context of a legacy statutory

framework that ill fits contemporary

institutional politics and governance

is palpable. sustainably pragmatic

outcomes at times require no small

judicial courage, particularly where

they result in dispiriting factual

outcomes, which courts themselves

take pains to note, possibly in an

effort to pre-empt the public frustration

and outrage sure to ensue.36 in the

name of pragmatism, this area of the

law, read in whole, yields a sense of

veering close to a humpty-Dumpty

scenario unmoored from history and

doctrinal origins that only the most

brilliant of jurists are able to keep

stitched together – with the seventh Circuit, courtesy of the

long stream of public corruption prosecutions emanating from

the office of the U.s. Attorney for the Northern District of

illinois, supplying a disproportionate share.37

i suspect that the few law professors who teach (Public)

Corruption Law as a curricular corpus have come to much the

same conclusion.38 i would urge, however, that this state of

affairs be a call to arms to lawyers generally. While by no means

supplying a large dataset, my modest teaching experience suggests

that students are hungry for answers – black letter law where

possible, (especially as the sword of Damocles that is the Bar

exam looms in their consciousness). more than a few appear

befuddled where there are few to no answers to be served up.

Where faint signs of frustration arise, i am prone to suggest

that where answers are in shortest supply is where the fun –

real lawyering -- begins. The roots and history of the profession,

i prattle on (probably with annoying parental overtones), should

signal that being a lawyer is a calling to be pursued as much

Continued on page 37

37

The Circuit Rider

Book ReviewContinued from page 36

more than well-paid intellectual production line work. if we

are serious about the training of not only skilled practitioners,

but guardians of the law who will be engaged and conversant

participants in the important civic

issues of their time, then (Public)

Corruption Law, because of its roots,

fluidity, lack of clear answers, and

direct connection to ethics, morality

and the integrity and legitimacy of

our constitutional system and culture

ought to be widely taught. hoffman

& sorensen speak to this with

modesty, but unmistakable clarity.39

it is this vision, i suspect, that partly

informs the choice of materials at

the back end of their casebook. in

addition to the aforementioned

materials on the FCPA, the meaty

Chapter Four includes a dip into country-specific laws outside

the United states most notably the United Kingdom’s rigorous,

burden-shifting, strict liability Anti-Bribery Act of 2010, which

addresses both domestic and international corporate bribery,40

Canada’s recently strengthened analog to the FCPA, the

Corruption of Foreign Public Officials ACT (CFPOA),41 as well

as the corruption-burdened south Africa’s Prevention and

Combatting of Corrupt Activities Act 12 of 2004.42 it also serves

up a couple of differently modeled multi-lateral agreements;

for example the OeCD43 Convention on Combatting Bribery of

Foreign Public Officials in international Business Transactions44

i read the marker they put down with these materials, (buttressed

with little to no commentary), as the leading edge of an effort

to expand discussion beyond the tether of domestic caselaw

to visioning a ground up reworking of our domestic anti-

corruption mechanisms.

Chapter Five, “The Unique enforcement Problems Presented

By Public Corruption,”45 delves into a few specialized realms

that challenge our ability to measure corruption, our societal

inclination to enforce it as such, and some of the legal,

institutional and cultural challenges of doing so. For example,

the chapter explores hindrances to investigation of public

officials and the need for disproportionality greater investigative

resources and tools, whistleblower protections to assure the

flow of leads and evidence, and structural independence to

assure objective, non-partisan investigation without fear of

reprisal, (firing or slashing of appropriations for needed

resources). Two other special realms of particular moment are

explored. The investigation and prosecution of police corruption

is plumbed for the enforcement complications posed by, among

other things, the immense authority and commensurate discretion

with which we endow law enforcement in the performance of

critical and, at times, dangerous

public duties, which in turn, partly

as a result of a history of non-

oversight, has fostered cultural

obstacles like the proverbial “thin

blue line” or “code of silence.”

Finally, of significance to an extent

the authors could not have imagined

when compiling the book, the

investigating and prosecuting of a

corrupt President, where the need

for special Prosecutors, the

complexities of executive Privilege,

and the overlay of Constitutional

provisions and procedures –

impeachment powers -- make

effective enforcement especially daunting.46 All of these can be

viewed as fascinating thought exercises that, again, provide a

platform for both problem-solving exercises and a broadened

engagement of “corruption.”

The paradigm-challenging aspects of the latter part of the book

take most obvious form in the final chapter, “Different Legal

Conceptions of Public Corruption.”47 having concluded our

tour, hoffman & sorensen take the reader back to where we

began in Chapter One, to re-engage the dominant, philosophical

and interdisciplinary theories on corruption. Now endowed

with a broad and deep exposure to the law and the generational

and jurisprudential evolution of the anti-corruption enterprise,

the reader has the opportunity to re-assess the societal and

cultural scope, scale and importance of corruption from moral,

economic, cultural relativist, constitutional and democratic

theory perspectives, which are quickly explored through a

surgical selection of academic readings. i read the closing

Continued on page 38

38

The Circuit Rider

Book ReviewContinued from page 37

materials – references to the work of harvard Law Professor

Lawrence Lessig, and an extended excerpt from Zephyr Teachout’s

The Anti-Corruption Principle48-- as our tour guides’ take on

the road out from challenging legal (as well as political and

societal) thicket of the moment. For Lessig and Teachout, as

well as hoffman and sorensen, the state of anti-corruption law

is confused in significant part because it has become unmoored

from its historical roots. The myriad corruption-related provisions

of the Constitution – the meaning and intent of which are

explicitly informed by the historical record of the Constitutional

Convention in 1787 and The Federalist papers49 -- embody what

Teachout refers to as an “anti-corruption principle.” it is that

from which the supreme Court’s public corruption jurisprudence,

beginning 40 years ago with Buckley v. Valeo, has become

either unmoored or which the Court’s increasingly expansive

weighting of competing First Amendment values has crowded

out. A corrective to reflect the originalist weighting of those

competing values would open the door to the more rigorous

and effective anti-corruption enterprise needed to salvage the

legitimacy of our tattered republican form of government. That,

in turn, might create the space necessary for the authors’ bounded

but flexible “pragmatic-republican” lens50 to flourish.

Whether hoffman & sorensen have that right is undeniably a

question worth extensive, thoughtful, informed discussion. in a

law school classroom. in every law school. As a foundational

core curricular requirement. Which this excellent textbook

makes immediately possible.

Notes:1 David h. hoffman is a partner in the Chicago Office of sidley Austin, LLP and

Adjunct Professor at the University of Chicago school of Law. mr. hoffmanpreviously served as a law clerk for Chief Justice William h. Rehnquist andJudge Dennis G. Jacobs of the U.s. Court Appeals for the second Circuit. hewas also a Deputy Chief in the United states Attorney’s Office for the NorthernDistrict of illinois after which he served a four year term as inspector General forthe City of Chicago.

2 michael Crowley, All of Trump’s Russian Ties in 7 Charts, Politico (march/April2017) available at http://www.politico.com/magazine/story/2017/03/connections-trump-putin-russia-ties-chart-flynn-page-manafort-sessions-214868.

3 See, e.g., Chad Day and stephen Braun, House Democrats Pressure White Houseon Kushner, Flynn Security Clearances, Chicago Tribune (June 21, 2017) availableat http://www.chicagotribune.com/news/nationworld/politics/ct-kushner-flynn-security-clearance-20170621-story.html.

4 See, e.g., sophie Tatum, Bharara: ‘Odd and unusual’ that Rosenstein Overseesand Is a Witness in Mueller Probe, CNN.com (sept. 25, 2017) available athttp://www.cnn.com/2017/09/24/politics/preet-bharara-rod-rosenstein/index.html.

5 See, e.g., Donald Trump: A List of Potential Conflicts of Interest, BBC News(April 18, 2017) available at http://www.bbc.com/news/world-us-canada-38069298; see also eric Lipton and Nicholas Fandos, Departing Ethics Chief:U.S. “Is Close to a Laughingstock”, New york Times (July 17, 2017) availableat https://www.nytimes.com/2017/07/17/us/politics/walter-shaub-ethics.html?_r=1.

6 Rebecca R. Ruiz, matt Apuzzo and sam Borden, FIFA Corruption: Top OfficialsArrested in Pre-Dawn Raid at Zurich Hotel, New york Times, (Dec. 3, 2015)available at https://www.nytimes.com/2015/12/03/sports/fifa-scandal-arrests-in-switzerland.html?_r=0; Nolan D. mcCaskill, NCAA Coaches Face FederalCharges Over Alleged College Basketball Fraud Scheme, Politico (sept. 26,2017) available at http://www.politico.com/story/2017/09/26/ncaa-coaches-college-basketball-fraud-scheme-justice-department-243151.

7 America’s Top Fears 2016, Chapman University survey of American Fears (Oct.

11, 2016), https://blogs.chapman.edu/wilkinson/2016/10/11/americas-top-fears-

2016/ (reporting 60.6% of those polled as “Afraid” or “Very Afraid” of “Corrupt

Government Officials,” to 41% for “Terrorist Attack”).8 See generally, Zephyr Teachout, Corruption in America: From Benjamin

Franklin’s Snuffbox to Citizens United, harvard U. Press, Cambridge, mA (2016ed.) 56-80 (hereinafter “Teachout”).

9 Id. at 56.10Id. at 57.11 The Federalist No. 68 (Alexander Hamilton), in The Federalist, J. Cooke (ed.),

meridian (1961) at 459. Revisiting The Federalist for this assignment wassomething of a revelation – i found the presence and use of the term “corruption”to proliferates at near obsessive levels, particularly in the writings of hamilton.

12See Teachout, at 307-310.13 See generally, Teachout, at 81-194.14 DAViD h. hOFFmAN & JULieT s. sOReNseN, PUBLiC CORRUPTiON

AND The LAW: CAses AND mATeRiALs, West Academic Publishing(2016) (hereinafter “hoffman & sorensen”). A general search yielded only oneother legal textbook, a highly useful practice-oriented compendium of leadingstatutes and their tactical applications. See, Peter J. henning & Lee J. Radek, TheProsecution and Defense of Public Corruption: The Law and Legal Strategies,Oxford U. Press ( 2017 ed.)

15 hoffman & sorensen, at 12-21 (excerpt from susan Rose Ackerman, Bribes,Patronage and Gift-Giving, in susan Rose-Ackerman, Corruption andGovernment: Causes, Consequences and Reform, Ch. 6, (1999) (setting forth aLaw & economics, contract-oriented typology of corruption).

16 Id. at 21-32 (excerpt from William easterly, The Elusive Quest for Growth:Economists’ Adventures and Misadventures in the Tropics, (miT Press, 2001)(detailing correlations between levels and varieties of corruption and government,institutional and economic characteristics).

17 Id. at 32-45 (excerpts from two leading seventh Circuit cases – United States v.

Murphy, 768 F.3d 1518 (7th Cir. 1985)(easterbrook) and United States v.

Maloney, 71 F.3d 645 (7th Cir. 1995) (eschbach) – arising from the decade-long

Operation Greylord undercover investigation into pervasive fraud in the Circuit

Court of Cook County (iL)). 18 Id. at 5-6.19 Id. (emphasis supplied).20 Id., at 47-271.21 The largely federal focus is not to the complete neglect of state law as the

authors include, for example bribery statutes and cases from illinois andCalifornia. hoffman & sorensen, at 117-32.

Continued on page 39

39

The Circuit Rider

Book ReviewContinued from page 38

22 By Prof. Teachout’s count, prior to the 1976 decision in Buckley v. Valeo, 424U.s. 1 (1976), the term quid pro quo was not part of any definition of corruptionand had appeared less than 100 times in all bribery and extortion cases -- lessthan 10 times prior to 1956 – and even then, not in relation to those crimes perse, but rather to witness immunity deals arising under prosecutions of thosecrimes. it was only in the 1970s that it began to show up in bribery discussions,but still not as an element or essential feature of the crime. The term begins toproliferate with the Roberts Court, with Justice Kennedy’s opinion in CitizenUnited v. Fed. Elec. Comm’n, 558 U.s. 110 (2016) using the phrase quid pro quofourteen times. Teachout, at 238-39.

23 hoffman & sorensen, at 56-113.24 See Teachout, at 130-31 & 214 (noting that public corruption cases are commonly

among the longest opinions produced in the history of the high court, with theseminal campaign finance case McConnell v. Fed. Elec. Comm’n, 540 U.s. 93(2003), “the longest case in constitutional history”).

25 510 F.3d 134 (2d Cir. 2007) (excerpted in hoffman & sorensen, at 62-70).26 246 F.3d 966 (7th Cir. 2001) (excerpted in hoffman & sorensen, at 190-97).27 See hoffman & sorensen, at 281-301.28 See Dan Walker, The Mother’s Milk of Politics Is Corrupting Absolutely, Nw. U.

L. Rev. Colloquy (spring 2009) available athttp://scholarlycommons.law.northwestern.edu/nulr_online/164 (analysis of the“pay-to-play epidemic in the state of illinois in the immediate wake of theunveiling of the corruption schemes of illinois Gov. Rod Blagojevich fromanother of the series of recent illinois governors to find himself on the wrongside of a federal felony conviction).

29 hoffman & sorensen, at 366.30 See Teachout, at 241-45.31 See generally, David A. strauss, Corruption, Equality and Campaign Finance

Reform, 94 Colum. L. Rev. 1369 (1994) (quoted in hoffman & sorensen, at476-77).

32 See strauss, at 1370 (“’corruption’ in the system of campaign finance is aconcern not for reasons that true corruption, such as conventional bribery, is aconcern, but principally because of inequality and the dangers of interest grouppolitics.”), quoted in hoffman & sorensen, at 476.

33 hoffman & sorensen at 491-734.34 For this reason, the authors provide a succinct “Comparative Analysis of the

FCPA and Other Domestic Laws Related to Bribery”, hoffman & sorensen, at669-79. For example, and among other things, they offer authority and analysisestablishing that “the FCPA anti-bribery provisions are in many ways based onthe parallel provisions of the bribery of federal officials statute [18 U.s.C.201(b)].” Id. at 669.

35 See, e.g., McCormick v. United States, 500 U.s. 257 (1991) (importing intohobbs Act (18 U.s.C. sec. 1951) extortion an explicit 18 U.s.C. sec. 201(b)bribery a quid pro quo requirement when the benefit at issue takes the form ofcampaign donations to an elected official), and Evans v. United States, 504 U.s.255 (1992) (reading out of hobbs Act extortion the historical (and statutory“inducement” requirement thereby collapsing the historically, doctrinally andstatutorily distinct and separate crimes of bribery and extortion).

36 See, e.g., (and famously), McDonnell v. United States, 579 U.s. ___, 136 s.Ct.2355 (2016) (excerpted in hoffman & sorensen at 110) (“There is no doubt thatthis case is distasteful; it may be worse than that.”); See also, McDonnell v.United States: Leading Case, harv. L. Rev. 467 (Nov. 10, 2016) (“most people

would assume that giving $175,000 in loans, gifts, and other benefits to a sittinggovernor while trying to secure his state’s help in launching your business wouldbe unequivocally illegal. most people would now be wrong, despite thirty-eightstates prohibiting the receipt of an equivalent amount in campaign contributions.”)available at https://harvardlawreview.org/2016/11/mcdonnell-v-united-states/.

37 See, e.g, United States v. Blagojevich, 612 F.3d 558 (7th Cir. 2015) (excerpted inhoffman & sorensen, at 84-90, for, among other things, the holding that, howeverunseemly, the offer of one political act in return for another – the selection of afavored successor to the senate seat of then-President-elect Barack Obama inreturn for a Cabinet seat – was, however unseemly, was a form of logrollingfundamental to everyday political activity that must therefore be kept outside theambit of 18 U.s.C. 1951 hobbs Act extortion, 18 U.s.C. 666 bribery and/or 18U.s.C. 1343/46 honest services wire fraud). indeed, beyond the key supremeCourt cases, the book’s case law excerpts for the extensive offerings on honestservices fraud and racketeering come from the seventh Circuit. hoffman &sorensen, at 198-272.

38 Casual online surveying of the course offerings at major law schools (informallyconfirmed in conversation with one of the authors) suggests that hoffman (at theUniversity of Chicago) and sorensen (at Northwestern) hold this ground at twoof only a small contingent of schools nationally that offer (Public) CorruptionLaw as a standalone curricular subject.

39 hoffman & sorensen, at v-vi (“Public corruption is properly viewed as aseparate, standalone topic in the law, even though the law school academic textshave not traditionally treated it as one. it is a topic that demands our study per se,both because of its social important and because it is a cohesive topic withconsistent themes and principles that interweave the various issues encompassedwithin it.

40 See hoffman & sorensen, at 679-89.41 hoffman & sorensen, at 689-706.42 hoffman & sorensen, at 706-17.43 Organisation for economic Co-Operation and Development

44 hoffman & sorensen, at 491-734.45 hoffman & sorensen, at 735-837.46 See hoffman & sorensen, at 808-37. One might reasonably anticipate with a 2d

edition to involve an expansion of the offerings on this topic to include treatmentof, among other things, the emoluments Clause and executive conflicts of interestand, depending on the direction of current events, possible consideration ofplacement of the section into the “institutional or structural” corruption set out in Chapter Three.

47 hoffman & sorensen, at 839-889.48 91 Cornell L. Rev. 341 (2009) (excerpted at hoffman & sorensen, at 873-889).49 The Anti-Corruption Principle (excerpted at hoffman & sorensen, 879-881).50 See pp. 4-5, supra.

Get involved!

interested in becoming more involved in the Association?

Get involved with a committee! Log on to our web site at

www.7thcircuitbar.org, and click on the “committees”

link. Choose a committee that looks interesting, and

contact the chair for more information.

40

The Circuit Rider

Recent eventswithin theCircuit

This section highlights recent

important events within the

7th Circuit. The articles both

memorialize and celebrate.

41

The Circuit Rider

The honorable John W. Darrah of the United states District Court for the Northern District of illinois

passed away on march 23, 2017, following a tough-fought battle with a yearlong illness. Jack, as his

friends and family called him, was a loving husband, father, grandfather and great-grandfather, and an

outstanding lawyer and jurist.

Judge Darrah was born on December 11, 1938, on Chicago’s southside. he graduated from mount Carmel

high school and received his degree in philosophy from Loyola University. in 1969, Judge Darrah

graduated from the Loyola University Chicago school of Law. Following graduation, Judge Darrah

served as an attorney advisor at the Federal Trade Commission from 1969 through 1971. From 1971

through 1973, Judge Darrah served as a deputy public defender in DuPage County, illinois.

Judge Darrah then went into private practice from 1976 through 1986. he broke from private practice

between 1973 and 1976, during which time he served as a DuPage County Assistant state’s Attorney.

in 1986, he was elected a Circuit Court Judge in DuPage County, illinois. On may 11, 2000, he was

nominated by President William J. Clinton to succeed Judge George m. marovich on the United states

District Court for the eastern District of illinois. his nomination was confirmed by the United states

senate on June 30, 2000; and he received his commission on July 14, 2000. Judge Darrah served as

an active member of the court until he took senior status on march 1, 2017. Judge Darrah continued

as a senior judge until his death.

Judge Darrah was a member of the faculty of the National institute for Trial Advocacy. he also was the

founder and former Co-Chairman of the DuPage County Bar Association Trial Advocacy Workshop

and was awarded the DuPage County Bar Association Board of Directors Award. he was also a member

of the American Judicature society, Federal Judges Association, Federal Circuit Bar Association, Assembly of

the illinois state Bar Association, Past President of the DuPage County Bar Association, Past President

Continued on page 42

*James Dvorak currently serves as the Supervising Staff Attorney for the United States District Court for the Northern District of

Illinois and served as Judge John W. Darrah's elbow clerk for eight years in the United States District Court for the Northern District

of Illinois.

ATributeTO JUDGe JOhN W. DARRAh

By Jim Dvorak*

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The Circuit Rider

ATribute: Judge John W. DarrahContinued from page 41

of DuPage American inns of Court, and Past President of theDuPage County Legal Aid society.

Judge Darrah was an Adjunct Professor of law at Northernillinois University College of Law from 1976 to 2006. he taughtCriminal Law, Property, Trial Advocacy, Agency/Partnership,Future interests, illinois Civil Procedure, Administrative Law,Real estate Transactions, evidence, Constitutional Law, ConsumerProtection, Advanced Criminal Procedure, and Unfair TradePractice. in addition, he coached the NiU National moot CourtCompetition and received the NiU Professor of the year Awardin 1992 and 1995. more recently, Judge Darrah taught AcceleratedTrial Advocacy and Trial Lawyer-evidence at The John marshallLaw school.

Judge Darrah was admired and loved by those who knew him andworked with him. he treated his staff with the utmost respect andvalued their opinions. Judge Darrah treated his staff as thoughthey were part of his family. he always showed genuine interestin his staff’s life outside of the courtroom and supported his staffin any manner that he could.

he was well respected by counsel who appeared before him, andhe treated counsel with respect as well. he also treated the pro se

parties who appeared before him with respect and compassion. heacknowledged that they were often not well versed in the lawbut, nonetheless, were engaged in their right to file a lawsuit totry to remedy a wrong they believed they had experienced. healways treated the pro se parties with compassion and patience.his compassion also showed through at sentencings; where hewould often comment that sentencing a defendant was one ofthe most difficult tasks he had to perform.

Judge Darrah was dedicated to the administration of justice andworked meticulously to ensure fair and impartial decisions. hetook seriously every matter before him, whether small or large,simple or complex and strived to ensure that he made proper,well-reasoned and just decisions. he loved the practice of lawand readily delved into a party’s argument, carefully analyzingthe facts and the law. Judge Darrah was always a dedicated anddevoted student of the law. For him, practicing and teaching thelaw were not simply his chosen professions, they too, were alsohis passions. he was a non-judgmental, compassionate man whoalways reveled and took great delight in witnessing the success

and joy of others. he took particular delight and pleasure inwatching others grow and succeed in their professions andpersonal lives. The lawyers who practiced before Judge Darrahare better lawyers after doing so, as are those who were luckyenough to have him as a professor and those who served as oneof his law clerks or externs.

some of Judge Darrah’s higher profile cases included: Nilssen

v. Osram Sylvania Inc., 01 CV 3585, a patent-infringementlawsuit in which Judge Darrah found that Nilssen’s inequitableconduct rendered eleven patents unenforceable; USA v. McCaffrey,

02 CR 591, sentencing a former priest to the maximum term ofimprisonment for possession of child pornography; Cancer

Treatment Centers of America, Inc. v. USA, 03 CV 2958, litigationarising from the airplane crash and resulting death of Chicagoradio host, Bob Collins; Fox v. Sheriff of Will County, 04 CV7309, civil lawsuit arising from the wrongful arrest and prosecutionof a father for murder of his daughter; USA v. Klein, 11 CR 401,ex-prison chaplain admitted to conspiring with convicted ChicagoOutfit hit man Frank Calabrese sr. to recover a supposedly rare18th century stradivarius violin said to be hidden in the mobster’svacation home; and Friends of the Parks v. Chicago Park District,

14 CV 9096, litigation stemming from the previously plannedGeorge Lucas museum of Narrative Art in Chicago, illinois.

The importance of family was one of Judge Darrah’s cornerstones.he is survived by his wife Jeannine, three daughters, two sons,three stepdaughters, two stepsons, nineteen grandchildren andthree great-grandchildren. he glowed when he spoke about hisfamily, and his love and devotion to Jeannine was obvious. hetook pride in his children and stepchildren and cherished everymoment he was able to spend with his family. Thanksgivingand Christmas were two of Judge Darrah’s favorite holidaysbecause he knew that he would be surrounded by family.

Judge Darrah was an avid Chicago White sox fan and tried toattend as many games as he could. his yearly Crosstown Classicevent was enjoyed by family, friends, and colleagues. he wasalso an avid fisherman – be it a bi-yearly fishing trip with theguys or a last-minute trip to the lake.

A memorial service was held for Judge Darrah on June 22, 2017.Those who filled the James Benton Parsons memorial Courtroomat the Northern District of illinois Courthouse heard remarksfrom over a dozen, varied speakers who paid tribute to a manwho had such an impact on their personal and professionallives. he was remembered as a 12-year-old catcher in southsidesandlot games, a young law student who supported his growingfamily by working in a pipe yard by day while attending schoolat night, a dedicated lawyer, a devoted father, a sage grandfather,an inspirational teacher, a public servant, a mentor, and a friend.his life was a life well lived. All who knew him, loved him. Wewill all miss him.

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Friend. mentor. Judge. Family man. Role model. humorist. No single word adequately describes Judge

Larry J. mcKinney, who died on september 20, 2017. his unexpected passing at age 73 leaves a void that

will never truly be filled.

mcKinney was born on the fourth of July in 1944, in south Bend, indiana. “i was 12 years old before i

finally realized that my dad wasn't telling me the truth when he told me all that celebration was just for

me,” said mcKinney. A stellar indiana trial court judge who served as U.s. District Judge for the

southern District of indiana for 30 years, mcKinney remained a humble man known as much for

his quick wit and sense of humor as his intellect and work ethic.

mcKinney graduated from south Bend John Adams high school in 1962. it was during this time that

mcKinney got his first taste of power, when he was assigned to introduce a speaker to the student body.

After the speaker was done, it dawned on mcKinney that none of the 1,500 students in attendance,

or the teachers or the principal, could leave until he dismissed them. mcKinney recounted that he

walked “slowly” over to the microphone. “i took five minutes to summarize his points and then

dismissed everyone. And you should have seen them. i had kids sitting on the edge of their seats in the

front row just waiting to race to their classes. And the longer and the more they bent over and the more

inertia taking them toward the door, the longer my summation took. i really enjoyed that,” mcKinney

said with a familiar twinkle in his eye.

Following high school, mcKinney attended macmurray College in illinois, where he met his wife Carole.

he asked her to marry him on their graduation day in 1966, and they enjoyed 51 years of marriage until

his death. Following graduation from macmurray, mcKinney attended indiana University mauer school

of Law in Bloomington, and Carole pursued a graduate degree at iU in psychology. Though there were

no lawyers in his family, mcKinney said he was drawn to the law because of the esteem in which lawyers

were held in their communities and because being a lawyer gave him the opportunity to help others.

Continued on page 44

*Tim A. Baker is a magistrate Judge in the Southern District of Indiana. The primary source for the information in this article,

including quotes by Judge McKinney, is taken from the Oral History of Judge Larry J. McKinney, taken on May 4 and 9, 2009, in

Indianapolis by the author.

ATributeTO JUDGe LARRy J. mCKiNNey

By Hon.Tim A.Baker*

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ATribute: Judge Larry J. McKinneyContinued from page 43

Upon his graduation in 1969, mcKinney accepted a position with

the indiana Attorney General's Office for $7,200 per year. The

mcKinneys’ lean earnings left little room for frolic. “i kept a

journal of our expenses one year,” mcKinney said. “Our entire

entertainment expenses for one month was 35 cents. it was for a

25 cent Dairy Queen for me and a dime Dairy Queen for Carole.”

The mcKinneys’ financial outlook improved over time, if slowly.

mcKinney opened a a private law practice, Rogers & mcKinney,

with Charlie Rogers in edinburg, south of indianapolis. The law

firm began inauspiciously. mcKinney and Rogers made a sign for

their law firm they were very proud of — if only briefly. “Then

a puff of wind came along and just blew that thing down in 30

seconds,” mcKinney said. “i never did put it back up. i’ve still

got that sign at home. i was just quite proud of the sign that lasted

30 seconds.” After painting and wallpapering his new law office,

mcKinney landed his first client. except it wasn’t legal work the

man wanted; he asked mcKinney to remodel his kitchen. “i

thought to myself, this is another one of life's crossroads,”

mcKinney joked.

in 1974, mcKinney joined forces with Jim sargent in Greenwood,

indiana, at sargent and mcKinney. Around this time, mcKinney

had mentioned an interest in becoming a judge to the heir-apparent

to the Johnson Circuit Court judge. serendipity resulted in that

person opting to remain in private practice. mcKinney jumped

in, won the Republican primary, defeated his World War ii hero

Democrat opponent, and was sworn in as the Johnson Circuit

Court Judge in 1979. The mcKinneys had started a family by this

time, with their first son, Josh, being born in 1976. “i was just so

proud,” mcKinney said. “i just was thrilled.” A second son, Andrew,

followed in 1980.

Back in those days, state court rules permitted an automatic

change of venue. mcKinney was developing a reputation as a

skilled trial judge, and many big firm lawyers in indianapolis

were eager to have him hear their cases, even though they

risked a longer wait given mcKinney’s increasingly heavy

caseload. mcKinney estimated he had more than 100 jury trials in

his first six years on the bench, in addition to handling countless

guilty pleas, sentencing, divorces, child support modifications,

and other court-related responsibilities. he did all his own research

and writing; he had no law clerks or legal interns. “it was a very

busy place to do business,” mcKinney remarked.

in 1987, President Ronald Regan nominated mcKinney to be a

U.s. District Court judge. in typical humble mcKinney fashion,

when he went to Washington, D.C. for his confirmation hearing,

the trial court judge from edinburg, indiana, didn’t stay in a fancy

hotel. instead, he drove out in a trailer with his dad, wife, two

kids, and his blind and diabetic dog and stayed at a KOA

campground. “We had to give her shots every morning and every

night, had to follow her around with a little pan to get her urine,”

mcKinney said of his dog. “And then you’d dip the tester strip in

the urine.” When mcKinney informed a member of one of the

indiana senator’s staff that he was staying at the KOA campground

she was “flabbergasted. she said, ‘i’ve never heard of anyone

staying there,’” mcKinney remembered.

soon after his senate confirmation, mcKinney realized the

power available to him at the federal court was significantly

greater than he had as a state court judge. One Friday afternoon a

lawyer filed a request for a temporary restraining order involving

a horse from Chile that was in indiana for the Pan American

Games. Remembering the moment, mcKinney stated, “it dawned

on me that instead of the power to throw somebody in jail for

failure to pay child support, or sort out a family crisis by putting

the children here or there, or to sort out other domestic relations

issues, in one stroke of my pen, i could have brought the whole

darn Pan American Games to a halt.” Ultimately, mcKinney

did not grant the restraining order and interfere in the games.

“[F]fortunately, i was able to rely on my judicial philosophy, which

comes from the Dolly Parton school of jurisprudence, which is,

‘Don't take my man just ‘cause you can,’” mcKinney joked.

Continued on page 45

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ATribute: Judge Larry J. McKinneyContinued from page 44

For the next 30 years, mcKinney handled high-stakes, complex

cases. he once had a 10-defendant criminal court case involving

gang activity that lasted three months. There were so many

defendants and lawyers in his courtroom for that trial that he

had risers erected to ensure adequate seating. “That was a very

interesting case,” mcKinney noted, adding that there were

excellent lawyers on both sides.

excellent lawyers and case complexities also dominated his

civil docket. Patent disputes were among the cases mcKinney

particularly enjoyed. Over the years, he handled cases involving

the design of tennis shoes, oxygen tanks, and much more.

mcKinney’s expertise in patent law earned him opportunities

to travel to Argentina, Chile, China, and other countries to

explain America’s patent and legal system to foreign lawyers

and judges. Though he found patent cases interesting, mcKinney’s

affinity for such cases had a deeper origin. As mcKinney explained

it: “my dad has always been my mentor; and he told me once

that in order to be successful in life, you had to learn to like

what everybody else didn’t like, which explains my affinity for

patent law.”

Through his many trials, mcKinney earned a reputation among

the bar as a “lawyer's judge” who had high expectations for

lawyers but never took the law or himself too seriously. “i think

it’s part of the judge’s role to set a tone of civility and set a

tone of relaxation in that courtroom so lawyers can concentrate

on the matters of representation instead of oppressive protocol,”

he stated. “The dispute resolution system constitutionally created

as the third branch of government needs to be respected and protected

by lawyers and judges alike. This is best done, in my view, in a

relaxed courtroom.”

mcKinney did take seriously and respected his obligation to help

others. in 2007, mcKinney helped launch the first re-entry court

in indiana's federal system. The court was dubbed “ReACh,”

which stands for Re-entry and Community help. The program is

designed to assist high-risk offenders return to society following

incarceration and reduce recidivism. “[W]e need to be increasing

our efforts to ensure that these people have every chance available

to do what we’ve asked them to do, which is be a law-abiding

citizen,” mcKinney said. Through the work of mcKinney and

others, the program doubled in size and added a second ReACh

court in 2017. One of the ReACh court graduates is an individual

that mcKinney once sentenced to life in prison. After his sentence

was reduced, he embraced the ReACh court, served as a mentor

to other ReACh court participants, holds a steady job, and was

moved to tears upon hearing of mcKinney’s passing.

mcKinney’s efforts to help others were not limited to the ReACh

program. mcKinney’s dedication to public service and civil

education was exemplified by his commitment to the “We the

People” program, an indiana Bar Foundation program that educates

middle school and high school students about the Constitution.

mcKinney spent countless hours judging and volunteering his

time for this program. On a separate front, mcKinney also worked

tirelessly with others to ensure that a new federal courthouse was

constructed in Terre haute, indiana, when the lease agreement for

the former courthouse location expired. having a federal court

presence in Terre haute was important to mcKinney, particularly

given that there is a federal prison and a robust bankruptcy docket

there. “seemingly impossible obstacles were overcome” in getting

a new Terre haute courthouse built, mcKinney observed.

in many ways, it seems impossible that mcKinney is gone. But

on september 20, 2017, he suddenly was. Thankfully, his caring

spirit, friendship, humor, and humility will live on in the countless

people he touched.

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in recent months, the indiana legal community has suffered an unimaginable loss by the passing of two

of our beloved colleagues. On August 2, 2017, magistrate Judge Denise LaRue lost her brief but valiant

battle with cancer. Then just seven short weeks later, on september 21, 2017, senior Judge Larry mcKinney

suddenly and unexpectedly passed away peacefully in his sleep. The federal family in the United states

District Court, southern District of indiana is attempting to come to grips with our tremendous losses.

At times like these i am reminded of something said at a funeral i attended some years ago. When the

preacher took to the podium to give remarks, he momentarily looked around the sanctuary, saying

nothing, and then finally said rather scornfully “look at us…just look at us…we are a room full of losers...”,

then he softened his tone and said “...for we all have lost someone we loved.” And, indeed, we have.

magistrate Judge Denise K. LaRue was born on march 31, 1958 to Robert and Jewell LaRue in

indianapolis, indiana. she and her sister, Collette, were just 12 months apart, and they enjoyed an idyllic

childhood. Judge LaRue attended indiana University, Bloomington where she received her B.s. from

the school of Public and environmental Affairs. While a student at indiana University, she worked as a

salaried intern with the indiana education employment Relations Board.

Following graduation from indiana University, she became the human Resources Administrator for

Allstate insurance Company, indianapolis, where she handled employee relations matters. While working

for Allstate, Judge LaRue decided to pursue her longtime dream of attending law school to further her

effectiveness in the area of labor and employment relations.

in 1989, Judge LaRue graduated cum laude from indiana University’s Robert h. mcKinney school of Law.

she began her legal career as a staff attorney at the indiana Civil Rights Commission. she subsequently

Continued on page 47

*Tanya Walton Pratt was appointed to the United States District Court, Southern District of Indiana, on June 15, 2010. She was

nominated by President Barack H. Obama and unanimously confirmed by the full United States Senate. She received her B.A. from

Spelman College in Atlanta, Georgia and her law degree from Howard University School of Law in Washington, D.C. She is married

to Marion Superior Court Judge Marcel A. Pratt, Jr.; they have one daughter who is also a lawyer. She and Judge LaRue were sisters

in Delta Sigma Theta Sorority, Inc., and close friends since 1984.

ATributeTO JUDGe DeNise K. LARUe

By Hon. Tanya Walton Pratt*

ATribute: Judge Denise K. LaRueContinued from page 46

entered private practice as an associate at what became haskin

& LaRue, LLP in 1994 and was named a partner two years

later. she was a trailblazer in that she was one of the first

African-American women in the indianapolis community to

be a full partner in a law firm and one of the few women

attorneys to own an office building in downtown indianapolis.

As a trial lawyer, she was a trailblazer in her chosen specialty,

employment law. her contributions to civil rights, human

rights, and racial and gender equality are pivotal to the

improvements of our society and are now part of her legacy.

Denise LaRue tried the first American with Disabilities Act

case and the first Family and medical Leave Act case before

juries in the southern District of indiana – and she won. she

also handled claims asserting various constitutional violations

of due process rights, free speech, and political association

violations, wage and hour violations, and claims under an

array of federal labor acts.

On may 11, 2011, Denise LaRue was appointed to the United states

District Court, southern District of indiana, as a magistrate

Judge. she possessed all of the qualities of a good judge —

patience, a strong work ethic, impartiality, a good listener,

decisiveness and she resolved cases efficiently. she ensured that

both sides felt the justice process was fair. But most importantly,

we could always depend on Judge LaRue to make sound,

well-reasoned decisions. All of our magistrate judges are

wonderful and efficient, but Judge LaRue had a personality that

was soothing and compassionate, yet commanding and strong.

As a former plaintiff’s lawyer and civil rights attorney, and as

a woman of color, she brought a unique perspective to our

court that enhanced its credibility and the quality of justice.

magistrate judges in the southern District of indiana handle a

myriad of case-related issues, not the least of which are settlement

conferences. These conferences can be emotionally draining

and physically taxing and can take hours and sometimes days.

But conducting settlement conferences was Judge LaRue’s

forte. Not only was she persistent yet understanding during

negotiations, but by her very nature, she was a peacemaker;

she was determined to find a resolution beneficial to both

sides. even when one party was dead-set against settlement

and reconciliation, she was often able to bring everyone to an

amicable agreement and mutual understanding. “Blessed are

the peacemakers, for they shall be called the children of God.”

(matthew 5:9)

in one of our final conversations, Judge LaRue told me that

she loved her job … she loved being a magistrate judge. she

had an exceptional appreciation for the work that she was doing.

Without question, she provided an important service to the court,

to the lawyers and litigants who appeared before her, to the

community that we live in, and to the nation that she so faithfully

served. her many rulings will have long standing value.

Judge LaRue served on the Local Rules Advisory Committee

and Pro Bono Committee for the southern District of indiana.

she was also a member of the Federal magistrate Judges

Association, seventh Circuit Bar Association, and a master

with the indianapolis American inn of Court (President 2014-

2016). she was a life member of the marion County Bar

Association. she served as a frequent speaker for continuing

legal education courses, including a course on Civility in the

Profession for the iBA’s Applied Professionalism Course. in

2007, Judge LaRue received the prestigious Antoinette Dakin

Leach Award from the indianapolis Bar Association Women in

Law Division.

For several years, she volunteered with the Chicago-based

organization Just The Beginning — A Pipeline Organization.

The primary purpose of this organization is to inspire minority

students to enter the legal profession, convince them that a

career in the legal profession is attainable, and assist them in

college and law school admission and preparation, internships

and clerkships. By working with Just the Beginning, her goal

Continued on page 48

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ATribute: Judge Denise K. LaRueContinued from page 47

was to help design a more diverse justice system at both the

state and federal levels.

hers was a life well lived and in addition to judicial responsibilities,

Judge LaRue was active in the community. she was a Diamond

Life member of Delta sigma Theta sorority, inc., a member of

the indianapolis Chapter of Links, inc., and an Associate

member of Jack & Jill of America.

An avid reader, Judge LaRue prided herself on completing

several novels during family vacations. she also loved the

friendships and the book discussions during her monthly book

club, “BookLovers” meetings. she was the 2007 indianapolis

Business Journal (iBJ) indiana super Lawyer and appeared in

Who’s Who of Black indianapolis for several years. in 2012,

Judge LaRue was nominated as a “Break Through Woman” by

the 100 National Coalition of Black Women and also received

the Achievement in Public service Award from the Center for

Leadership Development.

Judge LaRue had deep ties to her church and was a 50 year

plus member of Witherspoon Presbyterian Church, indianapolis.

she was involved in many aspects of her church community,

including serving as Chair of the Women’s Day Luncheon for

two years, and at the time of her passing, she was an elder.

most importantly, Denise LaRue was a family woman. The

love of her life was her son, Robert. she was a fantastic artist

and created many pieces of art which were displayed in her home.

she had a love for travel, good food, dancing, singing, and

family, Judge LaRue enjoyed every aspect of her life. she

leaves behind her beloved son, Robert, her devoted sister,

Collette Duvall, and her adoring parents, Robert and Jewell

LaRue.

There have been numerous articles and glowing tributes to

Denise K. LaRue over the past few weeks. But what many

may not know, is the grace and dignity with which she battled

cancer. she was accepting of God’s will and spoke of the full

and wonderful life that she had lived. Over the final few

months of her life, through her strength, courage and grace,

she gave all of us who spent time with her a final, wonderful

gift. she brought together relatives and friends from different

parts of her life, who learned over those long, hard days to

laugh, love, respect, support, and grieve with each other. if it

is indeed true that we can be judged by those with whom we

surround ourselves, then in her death, Denise LaRue’s life can

be viewed as a magnificent triumph.

We will miss our dear friend, but we can all be grateful for the

time that she shared with us and be grateful for having had the

opportunity to know her, to love her, and to call her our friend.

so, Judge LaRue, on behalf of your colleagues and friends, i

thank you. i salute you for your brilliant mind, your passion

for and commitment to justice, your kindness to and nurturing of

others, your generosity, your moral leadership, your patience

and understanding, for your spirituality and acceptance of

God’s will, for your deep devotion to your family, for your

truth, and for your uncritical acceptance and love.

Goodnight, Judge Denise K. LaRue. sweet dreams. And rest

assured that your son Robert, your sister Collette, and your

mom and dad, will be held close, protected, loved, and supported

by your family, your friends, and this community.

send Us your e-mailThe Association is now equipped to provide many

services to its members via e-mail. For example, we

can send blast e-mails to the membership advertising

up-coming events, or we can send an electronic version

of articles published in The Circuit Rider.

We are unable to provide you with these services,

however, if we don’t have your e-mail address. Please

send your e-mail address to changes@7thcircuitbar.org.

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The Circuit Rider

Court of Appeals

Notre Dame Law school Professor Amy C. Barrett has been

nominated to replace Judge John Daniel Tinder who took

senior status in February of 2015.

Attorney michael B. Brennan has been nominated to replace

Judge Terrance evans who took senior status in January of 2010.

Judge Richard A. Posner retired on september 2, 2017.

Judge Ann Claire Williams took senior status in June of 2017.

mia Furlong (supervisory staff Attorney) and Phil Police

(Deputy senior staff Attorney) are both retiring from the

Office of staff Law Clerks after serving long tenures there.

matthew Becker has been hired to replace ms. Furlong, and

Katherine Agonis has been hired to replace mr. Police.

Northern District of Illinois

senior Judge milton i. shadur will be honored at a dinner on

December 5, 2017 at which he will be awarded the Chicago Bar

Association’s first ever Lifetime Achievement Award.

Judge James Zagel took senior status on October 21, 2016.

Northern District of Indiana

Judge Robert miller took senior status on January 11, 2016

Judge Joseph Van Bokkelen took senior status on september

29, 2017.

James R. Ahler was appointed to replace Bankruptcy Judge

Philip Klingeberger, who has retired.

Southern District of Indiana

Judge sarah evans Barker took senior status on June 30, 2014.

N e W s A N D e V e N T s O F i N T e R e s T

Around theCircuitBy Collins T. Fitzpatrick*

*Collins T. Fitzpatrick is the Circuit Executive for the federal courts in the Seventh Circuit. He began work at the U.S. Court of Appeals for the Seventh Circuit in 1971 as a law clerk to thelate Circuit Judge Roger J. Kiley. He served as administrative assistant to former Chief Judge Luther M. Swygert before his appointment as Senior Staff Attorney in 1975 and CircuitExecutive in 1976. He is a Fellow of the Court Executive Program of the Institute for Court Management, a Master of the Bench in the Chicago Inn of Court, a member of the SeventhCircuit, Chicago, and American Bar Associations, and a Fulbright Specialist. He has an undergraduate degree from Marquette, a law degree from Harvard, and a graduate degree fromthe University of Illinois at Chicago.

President

elizabeth herringtonChicago, Illinois

First Vice President

Randall D. CrockerMilwaukee, Wisconsin

Second Vice President

michael A. scodroChicago, Illinois

Secretary

Thomas mcQueenNorth Barrington, Illinois

Treasurer

howard L. AdelmanChicago, Illinois

Immediate Past PresidentBrian W. WelchIndianapolis, Indiana

Illinois Governors

stephen R. KaufmannSpringfield

steven J. Roeder Chicago

J. Timothy eatonChicago

Beth JantzChicago

Deborah L. ThorneChicago

margot KleinChicago

Indiana Governors

Brian J. PaulIndianapolis

martin KusIndianapolis

mark stuaanIndianapolis

Wisconsin Governors

eric WilsonMadison

eric PearsonMilwaukee

Freya BowenMadison

2017-2018seventh Circuit Bar Association Officers

Board of Governors

editorial Board

The Circuit Rider

Editor-in-Chief

Jeffrey Cole

Associate Editors

Gabriel Aizenberg, Illinois Co-Chair

Laura McNally, Illinois Co-Chair

Alexandra Newman, Illinois Co-Chair

Justin Weiner, Illinois Co-Chair

Joshua Yount, Illinois Co-Chair

Brian Paul, Indiana Chair

Jane Dall Wilson, Indiana Co-Chair

Jeff Bowen, Wisconsin Chair

www.7thcircuitbar.org

Some of the woodcut illustrations used in this issue were obtained from the Newberry Library with the assistance of John Powell, iStock Photography, and from Wikimedia Commons.

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The Circuit Rider